THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


MARKETABLE   TITLE 


TO 


BSTATE 


BEING   ALSO 


A   TREATISE 


ON   THE 


RIGHTS  AND  REMEDIES  OF  VENDORS  AND  PURCHASERS 
OF  DEFECTIVE  TITLES  (As  BETWEEN  THEMSELVES) 


INCLUDING  THE 


Law  of  Covenants  for  Title,  the  Doctrine  of  Specific 
Performance,  and  other  Kindred  Subjects 

SECOND  EDITION 


BY 

CHAPMAN    W.    MAUPIN 

n  i 

OF   THK   WASHINGTON,    D.  C.,    BAR 


NEW  YORK 

BAKER,  VOORHIS  &  COMPANY 
1907 


COPYBIGHT,    1907, 

BY  BAKER,  VOORHIS  &  CO. 


PREFACE. 


This  work  is  a  treatise  on  the  law  of  title  to  real  property,  as 
that  law  is  applied  between  vendor  and  purchaser.  The  material 
v.  Inch  composes  it  has  been  drawn  principally  from  cases  that  have 
arisen  between  the  buyer  and  seller  of  lands,  and  not  from  decisions 
in  ejectment,  or  other  possessory  actions,  though  of  course  these 
latter  cases  have  been  availed  of  whenever  they  supply  principles 
which  affect  the  rights  of  the  vendor  or  purchaser  with  respect  to 
the  title  that  is  to  be  conveyed.  The  work  is,  therefore,  in  no  re- 
spect a  treatise  upon  real  property,  real  property  tenures,  nor  titles 
1o  real  estate,  in  the  sense  in  which  this  last  term  is  commonly 
used,  but  is,  instead,  a  collation  of  the  laws  and  decisions  which 
govern  the  rights  of  both  parties  with  respect  to  the  title,  and 
prescribe  the  remedies  of  the  purchaser;  precautionary,  where  it  is 
anticipated  that  the  title  may  prove  defective,  and  compensatory, 
where  it  has  proven  to  be  so.  Therefore,  what  circumstances  will 
entitle  a  vendee  to  protection  as  a  bona  fide  purchaser  for  value 
without  notice,  or  will  sustain  his  title  in  ejectment,  or  will  sup- 
port his  bill  to  remove  a  cloud  from  the  title,  have  not  been  mado 
the  subject  of  separate  and  independent  treatment  in  this  work, 
and  have  been  considered  only  so  far  as  they  have  served  to 
illustrate  some  principle  of  the  law  of  defective  titles,  as  applied 
between  vendor  and  purchaser.  That  law7  is  to  be  found  dispersed 
through  the  text  books,  and  through  the  reports  and  digests  under 
the  several  heads  of  Vendor  and  Purchaser,  Covenants  for  Title/ 
Specific  Performance,  Equity  Jurisprudence,  Deeds,  Titles  to 
Real  Estate,  Real  Property,  Abstracts  of  Title,  Judicial  Sales. 
Subrogation,  and  many  other  minor  heads  of  the  law.  The  effort 
of  the  writer  has  been  to  collect  the  relevant  matter  from  these 
different  sources  in  one  volume,  and  so  to  arrange  and  to  dispose 
it  as  to  render  the  whole  easily  accessible  to  the  profession. 

Some  difficulty  has  been  experienced  in  choosing  between  several 
apparently  appropriate  titles  for  the  work.  That  which  has  been 
selected,  "  Marketable  Title,"  is  satisfactory,  but  requires  a  word 
of  explanation.  The  modern  use  and  acceptation  of  this  term  it  is 
believed  justifies  its  employment  as  the  title  of  a  treastise  upon 


735263 


IV  PREFACE. 

the  rights  of  vendors  and  purchasers  of  defective  titles,  including 
as  well  the  law  of  covenants  for  title  as  the  equitable  doctrine  of 
doubtful  titles.  But  originally  the  term  was  narrow  and  technical 
in  its  meaning,  being  used  in  equity  to  denote  a  title  concerning 
which  there  was  no  reasonable  doubt.  The  term  was  not  known  in 
the  law  courts,  where  titles  were  treated  either  as  good  or  bad,  and 
judgment  rendered  accordingly.  Hence  at  law  a  title  might  be 
adjudged  good  which  in  equity  the  purchaser  would  not  be  com- 
pelled to  accept.  A  small  but  learned  and  abstruse  treatise  upon 
the  equitable  doctrine  of  marketable  titles  by  S.  Atkinson  wa* 
published  in  London  and  republished  in  America  (1838)  in  the 
"  Law  Library ;"  from  this  work  the  limited  and  technical  signifi- 
cance of  the  expression  will  appear.  Of  late  years,  however,  the 
American  courts  have  very  generally  applied  the  term  "  un- 
marketable "  to  any  title  which  a  purchaser  cannot  be  required  to 
accept,  without  discriminating  between  titles  absolutely  bad  and 
those  merely  doubtful,  so  that  now  "  unmarketable  "  is  commonly 
employed  by  the  courts  and  the  profession  as  a  synonym  for  "  de- 
fective "  title.  This  is  probably  due  to  the  fact  that  in  most  of  the 
States  legal  and  equitable  relief  are  administered  in  one  and  the 
same  court  and  form  of  action  without  distinction,  or  at  least 
equitable  defenses  are  allowed  to  be  interposed  in  actions  at  law. 
Hence  there  is  no  longer  any  occasion  for  treating  the  expression 
*'  marketable  title  "  as  limited  and  technical  in  its  character.  The 
term  then,  or  rather  its  negative  form,  being  applicable  to  all 
defective  titles  whether  absolutely  bad  or  merely  doubtful,  it  is 
apprehended  that  no  inconvenience  can  arise  from  treating  under 
that  head  such  subjects  as  Covenants  for  Title,  Estoppel,  Action 
for  Damages,  Right  to  Perfect  the  Title,  and  so  on,  none  of  which 
belong  to  the  original  equitable  doctrine  of  marketable  titles,  but 
obviously  pertain  to  the  law  of  defective  titles. 

The  author  desires  to  acknowledge  the  many  facilities  for  the 
prosecution  of  his  labors  which  have  been  afforded  him  in  a 
generous  manner  by  his  publishers,  Messrs.  Baker,  Voorhis  &  Co.r 
of  the  city  of  New  York ;  and  courtesies  extended  to  him  by 
Messrs.  B.  Kennon  Peter  and  F.  S.  Key  Smith,  in  charge  of  the 
law  library  of  the  Bar  Association  of  the  District  of  Columbia. 

C.  W.  M. 

WASHINGTON,  D.  C.,  May  1st,  1896. 


PREFACE  TO  SECOND  EDITION. 


The  author  has  examined  the  cases  relating  to  this  branch  of 
the  law  of  real  property,  decided  by  the  courts  since  the  publication 
of  the  first  edition  of  this  work  in  189G.  Such  of  them  as  are  no 
more  than  applications  of  settled  principles  of  law,  he  has  merely 
cited  or  referred  to  under  their  appropriate  heads.  A  large  num- 
ber, valuable  for  purposes  of  illustration,  have  been  set  out  as 
paragraphs  in  the  notes;  and  many  have  furnished  material  for 
the  enlargement  and  improvement  of  the  text.  A  number  of  new 
sections  have  been  added  to  the  body  of  the  work.  In  all  some- 
thing more  than  seven  hundred  new  decisions  appear  in  the  present, 
edition,  representing  the  application  of  the  law  governing  the 
rights  of  purchasers  of  defective  titles  to  real  property  by  the 
courts  of  nearly  every  State  in  the  Union. 

C.  W.  M. 

WASHINGTON,  D.  C.,  1907. 


ANALYSIS. 


BOOK  I. 

Of  remedies  in  affirmance  of  the  contract  of  sale.    1 
Of  affirmance  by  proceedings  at  law.     1     » 

Of   proceedings   at  law   while   the   contract   is   executory.     1 
Introductory.     1 
Action   for   breach    of   contract.     11 

Title   which   the   purchaser   may   demand.     20 

Implied   and    express   agreements   as   to   the    title,     20 
Sufficiency  of  the  conveyance. 
Caveat   Emptor.     75 

Covenants  which  the  purchaser   may  demand.     143 
Abstract    of    title.     159 
Waiver  of  objections  to  the  title.     183 
Tender   of   purchase  money  and  demand  of  deed.     199 
Measure  of  damages.     209 
Action  for  deceit.     232 

Of  proceedings   at  law  after  the  contract  has  been  executed.     253 
Action  for  covenant  broken.     253 

Covenants    for    seisin    and    for    right    to    convey.     253 

Covenant  against  incumbrances.     278 

Covenant   of   warranty   and   for   quiet   enjoyment.     318 

Covenant   for   further  assurance.     416 

Detention   of   purchase   money   on   breach   of   the   covenants 

of  warranty  and  against  incumbrances.     420 
Of  affirmance  by  proceedings  in  equity.     456 

Specific  performance  of  executory  contracts.     456 

Right  of  the  purchaser  to  take  the  title  with  compensation 

for  defects.     467. 

Eight  of  the  purchaser  to  perfect  the  title.     481 
Specific    performance   of   covenants    for   title.     489 
Estoppel   of  the  grantor.     493 
Reformation   of  the  convevance.     526 


Vlll  ANALYSIS. 

BOOK  II. 

Of  remedies  in  disaffirmance  or  rescission  of  the  contract  of  sale.    548 
Of  rescission   by   act  of  the  parties.     548 
Of   virtual    rescission   by   proceedings   at    law.     554 

Of  proceedings  at  law  where  the  contract  is  executory.     554 
Of  the   right  to  recover  back  or  to  detain   the  purchase 
money.     554 

Of  the  obligation  of  the  purchaser  to  restore  the  premises 

to  the  vendor.     583 

Of  proceedings  at  law  where  the  contract  has  been  executed.     599 
Detention   of   the    purchase   money   on    breach    of   the   covenant 

of  seisin.     599 

Acceptance    of    conveyance    without    covenants    for    title.     61C- 
Restitution   of  the  purchase  money  where  there  are 

covenants.     643 

Fraud   in   respect   to   the  title.     G47 
Of  rescission   by  proceedings   in  equity.     65X5 

Where   the   contract    is    executory.     656 

Suit    for    rescission    and    defenses    to    suit   for    specific 
performance.     656 

The  doctrine   of  doubtful   titles.     672 

Eight   of   the   vendor   to    perfect    the   title.     741 

Right  to  require  the  purchaser  to  take  the  title  with 

compensation.     769 

Where  the  contract  has  been  executed.     778 
Injunction.     778 
Fraud  and  mistake,     798 


CONTENTS. 


BOOK  I. 

OF  REMEDIES  IN  AFFIRMANCE  OF  THE  CONTRACT  OF  SALE. 
OF  AFFIRMANCE  BY  PROCEEDINGS  AT  LAW. 

OF  PROCEEDINGS  AT  LAW  WHILE  THE  CONTRACT   is 
EXECUTOR^. 

CHAPTER  I. 
INTRODUCTORY. 

CHAPTER  II. 
ACTION  FOR  BREACH  OF  CONTRACT. 

General  principles;  form  of  action.     §    1 

Doubtful  title  in  action  for  damages.     §  2 

Purchaser  in  possession  may  sue.     §  3 

Defenses  to  the  vendor's  action  for  breach  of  contract.     §  4 

CHAPTER   III. 
IMPLIED  AND  EXPRESS  AGREEMENTS  AS  TO  THE  TITLE. 

Implied   agreements: 

General  rule.     §  5 
Express  agreements: 

General  principles.     §  6 

Terms  and  conditions  of  sales.     §  7 

Auctioneer's   declarations.      Parol    evidence.     §    8 

English   rules  as  to  conditions.     §  9 

Agreement    {o   make   a    ''good    and    sufficient    doed."     §    10 

Agreement  to  convey  by  quit  claim.     §   11 

Agreement  to  sell   "  right,  title  and  interest."    §    12 

Agreement  to  sell  subject  to  liens.     §   13 

CHAPTER   IV. 
OF  THE  SUFFICIENCY  OF  THE  CONVEYANCE  TENDERED  BY  THE  VENDOR. 

General  observations.     §  14. 

Essential   requisites  of  the  conveyance.     §   15 

Material,  printing,  etc.     §   16 

Date.     §   17 

Parties.     §  18 

Words  of  conveyance.     §  19 


£  CONTEXTS. 

Description  of  the  premises.     §  20 

Description  of  the  estate  or  interest  conveyed.     §  21 

Signature  and  seal.     §  22 

Attestation  or  acknowledgment.     §  23 

(a)  Venue  of  the  certificate.     §  24 

(b)  Name  and  official  designation  of  certifying  officer.     §  25 

(c)  Name  of  grantor.     §  26 

(d)  Annexation  of  deed.     §   27 

(e)  Jurisdiction  of  certifying  officer.     §   28 

(f)  Personal  acquaintance  with  grantor.     §  29 

(g)  Fact  of  acknowledgment.     §  30 
(h)    Privy   examination   of  wife.     §    31 
(i)    Explanation  of  contents  of  deed.     §  32 
(k)  Voluntary  act  of  wife.     §  33 

( 1 )   Wish  not  to  retract.     §  34 
(m)  Reference  to  official  seal.     §  35 

(n)   Date  of  certificate.     §   36 

(o)   Signature  of  officer.     §  37 

(p)   Abbreviation  of  official  designation.     §  38 

(q)    Seal   of   officer.     §    39 

(r)   Surplusage  and  clerical  mistakes.     §  40 

(B)  Amendment  of  certificate.     §   41 
Reservation,  restrictions  and  conditions.     §  42 
Waiver  of  objections  to  the  conveyance.     §  43 

CHAPTER  V. 
CAVEAT  EMPTOB. 

General  observations.     §  44 
Application  of  the  maxim  to  judicial  sales: 
Inherent  defects  of  title.     §   45 

Effect  of  confirmation  of  the   sale.     §   46 

Exceptions  to  the  rule.     §  47 

Fraud  as  it   affects  rights  of  purchasers  at  judicial   sales.     §  48 
Errors   and   irregularities   in   the   proceedings.    Collateral   attack.     $    40 
Want  of  jurisdiction.     §  50 
Matters  occurring  after  jurisdiction  has  attached.     §   51 

Fraud  as  ground  for  collateral  attack.     §  52 
Sales  by  executors  and  administrators: 

Sales  in  pursuance  of  testamentary  powers.     §  53 
Sales   in   pursuance   of   judicial   license.     §    54 
Fraud  on  the 'part  of  personal  representative.     §  55 
Want  of  jurisdiction.     Errors  and  irregularities.     §  56 
Sheriff's  sales: 

Want  of  title  in  execution  defendant: 

General  rules.     §  57 

Exceptions.     $  58 

Fraudulent  'representations.     ?    59 

Rights   of  purchaser   from    purchaser   under   execution.     5    60 


CONTEXTS.  XL 

Sheriff's  sales  —  Continued. 

Title  under  void  judgment.     §  61 

Title  under  void  sale.     §  62 
Tax  sales.       §   63 

Sales   by  trustees,  assignees,  etc.     §  64 
Subrogation  of  purchaser  at  judicial  and  ministerial  sales: 

Where  the  sale  is  void.     §  65 

Where  the  sale  is  valid.     §  66 

CHAPTER  VI. 

COVENANTS    WHICH    THE   PURCHASE   HAS   A    RIGHT   TO   DEMAND. 

Usual  covenants.     §  67 

From   grantors   in  their  own   right.     §   68 

From  fiduciary  grantors.     §  69 

From    ministerial    grantors.        §    70 

CHAPTER  VII. 

ABSTRACT  OF  TITLE. 

In  general.     §  71 

Root  of  title.        §    72 

Duty   to  furnish  abstract.     §  73 

Property  in   the  abstract.     §   74 

Time   in   which    to    examine   the   title  ;and   verify   the   abstract.     §    75 

Summary  of  the   various  sources  of  objections  to  title.     8    76 

Objections     appearing    from    the     instruments     under     which     title     ia 

claimed.     §    77 

Objections    which    appear    from    the    public    records.     §    78 
Objections  which  appear  upon   inquiries  in  fxtin.     8   79 

CHAPTER  VIII. 

WAIVER  OF  OBJECTIONS  TO  TITLE. 
In  general.     §   80 

Waiver  by  taking  possession.     §  81 
Laches   of   purchaser.     §    82 
Waiver  by  continuing  negotiations.     §  83 
Waiver   in   cases  of   fraud.     §   84 
Waiver  by  purchasing  with  notice  of  defect.     §  85 

CHAPTER  IX. 
TENDER  OF  PERFORMANCE  AND  DEMAND  FOR  DEED. 

General   rule.     §   86 

Exceptions.     §  87 

Duty  of  the  vendor  to  tender  performance.     §  88 

Pleadings.     §   89 


.xii  CONTENTS. 

CHAPTER   X. 
MEASURE  OF  DAMAGES  FOB  INABILITY  TO  CONVEY  A  GOOD  TITLE. 

General    observations.     §   90 

Where  the  vendor  acts  in  good  faith: 

Flureau  v.  Thornhill.     Hopkins  v.  Lee.     §  91 

Barter   contracts.     §    92 

Expenses  of  examining  the  title.     §  93 

Interest.     §    94 

Rents  and  profits.     8  95 

Improvements.        §   96 

Where  the  vendor  acts  in  bad  faith.     §  97 
Where  the  vendor  expects  to  obtain  the  title.     §  98 
Where  the  vendor  refuses  to  perfect  the  title.     §  99 
Liquidated  damages.     §  100 

CHAPTER  XI. 
ACTION  AGAINST  TUB  VENDOR  FOR  DECEIT. 

General  principles.     §  101 

What  constitutes  fraud  with  respect  to  the  title: 

Concealment  of  defects.     §   102 

Willful  or  careless  assertions.     §   103 

Defects  which   appear  of  record.     §    104 

Existence  of  fraudulent  intent.     §   105 

Statements  of  opinion.     §   106 
Pleading.     §   107 

OF  AFFIRMANCE  BY  PROCEEDINGS  AT  LAW  AFTER  THE  CONTRACT 
HAS  BEEN  EXECUTED  —  ACTION  FOR  COVENANT  BROKEN. 

CHAPTER  XII. 

OF  THE  COVENANT  FOB  SEISIN. 

Form  and  effect.     §  108 

What  constitutes  a  breach.     §    109 

As-signability  of  this  covenant : 
Tn  general.     §    110 
Does  not  run  with  the  land.     §   111 
Contrary  rule.     Doctrine  of  continuing  breach.     §   112 
Possession   must  have  passed  with  the  covenantor's  deed.     §    113 
When  Statute  of  Limitations  begins  to  run.     §   114 
Conflict  of  laws.     §   115 

Measure  of  damages.     §   116 

Burden  of  proof.     §   117 

Pleadings.     §  118 


CONTENTS.  Xlll 

CHAPTER  XIII. 

COVENANT  AGAINST  INCUMBBANCES. 

Form.     §  119 

Restrictions  and  exceptions.     §    120 

Parol  agreements.     §  121 
What  constitutes  breach.     §   122 

Definition  of  incuinbrance.     §  123 

Pecuniary  charges  and  liens.     Effect  of  notice.     §   124 

Outstanding  interest  less  than  a  fee.     §    125 

Easements  or  physical  -incumbrances.     §    12G 

Notice  of  easement  at  time  of  purchase.     §  127 
Assignability  of  this  covenant.     §   128 
Measure  of  damages: 

General  rules.     §   129 

Where  covenantee  discharges  the  incumbrance.     §   130 

Damages   cannot  exceed   purchase   money  and  interest.     §    131 

Where  incumbrance  is  permanent.     §    132 
Pleading  and  proof.     §  133 

CHAPTER  XIV. 

• 

COVENANTS  OF  WABBANTY  AND  FOB  QUIET  ENJOYMENT. 

Form.     §  134 

Construction  and  effect.     §    135 
Qualifications  and  restrictions.     §  130 
When  implied.     §   137 
Parties  bound  and  benefited: 
Married  women.     §   138 

Heirs  and  devisees.     Joint  convenantors.     §  139 
Personal   representatives.     §    140 
Who  may  sue  for  breach.     §  141 
What  constitutes   breach : 

Tortious  disturbances.     §    142 

Eminent  domain  and  acts  of  sovereignty.     §  143 

Actual  eviction: 

General  rule.     §  144 

Entry  by  adverse  claimant.     Legal  process.     §   145 
Constructive  eviction: 

Inability  to  get  possession.     §    146 
Vacant  and  unoccupied  lands.     §   147 
Surrender  of  possession.     §   148 
Hostile  assertion  of  adverse  claim.     §  149 
Purchase   of   outstanding   title.     §    150 
Hostile  assertion  of  adverse  claim.     §   151 
of  incorporeal  rights.     §    152 


XIV  CONTENTS. 

Covenant  of  warranty  runs  with  the  land: 

General  rule.     §   153 

Assignee  may  sue  in  his  own  name.     §    154 

Separate  actions  against  original  covenantor.     §  155 

Release  of  covenant  \>y  immediate  covenantee.     §   156 

Quit   claim  passes  benefit  of  covenant.     §   157 

Immediate  covenantee  must  liave  been  damnified.     §   158 

Remote   assignee   may  sue  original   covenantor.     §    159 

Mortgagee  entitled  to  benefit  of  covenant.     §   160 

Original  covenantor  must  have  been  actually  seised.     §   161 

Assignee  not  affected  by  equities  between  original  parties.     §  162 

Covenant  extinguished  by  reconveyance  to  covenantor.     §   163 
Measure  of  damages: 

General  rule.     §   164 

New  England  rule.     §  165 

Amount  to  -which  assignee  is  entitled.     §  166 

Consideration  may  be  shown.     §    167 

Where  covenantee  buys  in  paramount  title.     §   168 

Loss  of  term   for  years.     §    169 

Eviction  from  part  of  the  estate.     §   170 

Improvements.     §   171 

Interest  on  damages.     §  172 

Costs.     §    173 

Counsel  fees  and  expenses.     §  174 

Notice  of  hostile  suit  and  request  to  defend.     §   175 

Pleading  and  burden  of  proof.     §   176 

Covenant  for  quiet  enjoyment.     §  177 

CHAPTER  XV. 

COVENANT  FOB  FUBTHEB  ASSUBANCE, 
In  general.     §  178 
Breach.     Estoppel.     Assignability.     Damages.     §   179 

CHAPTER  XVI. 

DETENTION  OF  THE  PURCHASE  MONEY  WHEBE  THESE  HAS  BEEN  A  BBEACH  OF 

THE  COVENANTS  FOB  TITLE. 
General  rule.     §    180 

Merger  of  prior  agreements  in  covenants  for  title.     §   181 
Purchase  with  knowledge  of  defect.     §  182 
Recoupment.     §    183 

Recoupment  in  foreclosure  of  purchase-money  mortgage.     §   184 
Partial  failure  of  consideration.     §   185 
Assumpsit  to  try  title.     §   186 
What  constitutes  eviction.     §   187 
Discharge  of  incumb ranees.     §   188 
Rule  in  Texas.     §  189 
Rule  in  South  Carolina.     §   190 
Pleadings.     §   191 
Resum6.     §   192 


CONTENTS.  XV 


OF  AFFIRMANCE  OF  THE  CONTRACT  BY  PROCEEDINGS  IN  EQUITY. 

CHAPTER  XVII. 

SPECIFIC  PERFORMANCE  OF  EXECUTORY  CONTRACTS  AT  THE  SUIT  OF  THE 

PURCHASER. 
In  general.     §  193 

Payment  of  the  purchase  money  as  condition  precedent.     §  194 
Laches  of  purchaser.     §   195 
Damages  in  equity.     §    196 

CHAPTER  XVIII. 
RIGHT  OF  THE  PURCHASER  TO  TAKE  TITLE  WITH  COMPENSATION  FOR  DEFECTS. 

General  rule.     §   197 

Indemnity  against  future  loss.     §  198 

Indemnity  against  dower.     §    199 

Exceptions  to  general  rule.     §  200 

Right  of  vendor  to  rescind  on  failure  of  the  title.     §  201 

CHAPTER  XIX. 
OF  THE  RIGHT  OF  THE  PURCHASER  TO  PERFECT  THE  TITLE. 

By  the  purchase  of  adverse  claims.     §  202 

By  the  discharge  of  liens  or  incumbrances.     §  203 

Subrogation  of  purchaser.     §  204 

CHAPTER  XX. 
OF  SPECIFIC  PERFORMANCE  OF  COVENANTS  FOR  TITLE. 

General  rules.     §  205 

Covenant  against  incumbrances.     §  206 

Conveyance  of  after-acquired  estate.     §  207 

CHAPTER  XXI. 

ESTOPPEL  OF  THE  GRANTOR. 
General  rules.     §  208 

After-acquired  estate  must  be  held  in  same  right.     §  209 
Mutual  estoppels.     §  210 
Estoppel  of  mortgagor.     §  211 
Effect  of  void  conveyance  as  an  estoppel.     §  212 

Effect  of  estoppel  as  an  actual  transfer  of  the  after-acquired  estate.     §  2!3 
Rights  of  purchaser  of  the  after-acquired  estate  from  the  covenantor.     §  214 
Compulsory  acceptance  of  the  after-acquired  estate  in  lieu  of  damages.     §  215 
What  covenants  will  pass  the  after-acquired  estate.     §   216 
Estoppel  not  dependent  on  avoidance  of  circuity  of  action.     §  217 
Effect  of  quit  claim  by  way  of  estoppel.     §  218 
Estoppel  of  grantee.     §219 
Resum§.     §  220 


XVI  CONTENTS. 

CHAPTER  XXII. 
REFORMATION  OF  THE  CONVEYANCE. 

When  granted  and  when  denied: 

General  principles.     §  221 

Mistake  of  fact.     §  222 

Mistake  of  law.     §  223 

Mutuality  of  mistake.     Fraud.     §  224 

Mistakes  resulting  from  negligence.     §  225 

Nature  and  degree  of  evidence  required.     §  226 

Laches  in  application  for  relief.     §  227 

Defective  execution  of  statutory  power.     §   228 
In  favor  of  and  against  whom  relief  may  be  had: 

In  general.     §  229 

In  favor  of  grantor.     §  230 

Purchasers   and   creditors.     §   231 

Volunteers.     §  232 

Married  women.     §  233 


BOOK  II. 

OF  REMEDIES  IN  RESCISSION  OR  DISAFFIRMANCE  OF  THE  CON- 
TRACT OF  SALE. 

CHAPTER  XXIII. 

OF  RESCISSION  BY  ACT  OF  THE  PABTIES. 

General  principles.     §  234 
Rescission  by  one  party  only.     §  235 
Statute  of  Frauds.     §  236 

OF  VIRTUAL  RESCISSION  OF  THE  CONTRACT  BY  PROCEEDINGS  AT 
LAW. 

OF  PROCEEDINGS  AT  LAW  WHERE  THE  CONTRACT  is  EXECU- 
TORY. 

CHAPTER  XXIV. 

OF  THE  RIGHT  TO  RECOVER  BACK  OR  DETAIN  THE  PURCHASE  MONEY  ON 
FAILURE  OF  THE  TITLE. 

General  principles.     §  237 

Restitution  of  the  purchase  money.     §  238 

What  action  purchaser  should  bring.     §  239 

Detention  of  the  purchase  money.     §  240 

Exceptions  and  qualifications.     §  241 

What  objections  to  title  may  be  made.     §  242 


CONTENTS.  XVI 1 

Expenses  of  examining  the  title.     §  243 

Burden  of  proof.     Miscellaneous  rules,     §   244 

Right  to  rescind  where  the  estate  is  incumbered.     §  245 

Buying  with  knowledge  of  defect  or  incumbrance.     §  246 

Chancing  bargains.     §  247 

Effect  of  accepting  title  bond.     §  248 

Inquiry  into  consideration  of  sealed  instrument.     §  249 

Right  to  enjoin  collection  of  purchase  money.     §  250 

Rights  against  transferee  of  purchase-money  note.     §  251 

Refusal  of  vendor  to  convey  for  want  of  title.     §  252 

Tender  of  purchase  money  and  demand  of  deed.     §  253 

Offer  to  rescind.     §  254 

Pleadings.     §  255 

CHAPTER  XXV. 

OF  THE  OBLIGATION  OF  THE  PURCHASER  TO  RESTORE  THE  PREMISES  TO  THE 

VENDOR. 

General  principles.     §  256 

Vendor  must  be  placed  in  statu  quo.     §  257 

Restoration  of  premises  a  condition  precedent  to  rescission.     §  258 

Rule  in  Pennsylvania,     §  259 

Restoration  of  the  premises  in  cases  of  fraud.     §  260 

When  purchaser  need  not  restore  the  premises.     Purchaser's  lien.     §  2G1 

Other  exceptions.     §  262 

Restoration  of  the  premises  where  the  contract  is  void.     §   263 

OF  VIETUAL  RESCISSION  BY  PROCEEDINGS  AT  LAW  AFTEB  THE 
CONTRACT  HAS  BEEN  EXECUTED. 

DETENTION  OF  THE  PUECHASE  MONEY. 

CHAPTER  XXVI. 

OF  DETENTION  OF  THE  PURCHASE  MONEY  WHERE  THERE  HAS  BEEN  A  BREACH 
OF  THE  COVENANT  OF  SEISIN. 

General  rule.     §  264 

Qualifications  of  this  rule.     §  265 

Breach  of  covenant  as  to  part  of  the  premises.     §  266 

CHAPTER  XXVII. 

OF  THE  DETENTION  OR  RESTITUTION  OF  THE  PURCHASE  MONEY  WHERE  THE 
DEED  CONTAINS  NO  COVENANTS  FOR  TITLE. 

General  principles.     §  267 

Exception.     Void  conveyances.     §  268 

Merger  of  prior  agreements  in  the  deed.     §  269 

Merger  in  cases  of  fraud.     §  270 

Rule  in  Pennsylvania  as  to  detention  of  the  purchase  money.     §  271 


XV111  CONTENTS. 


CHAPTER  XXVIII. 

OF  RESTITUTION  OF  THE  PURCHASE  MONEY  WHERE  THERE  ARE  COVENANTS  FOR 

TITLE. 

General  rule.     §  272 
Exceptions.     §   273. 

CHAPTER  XXIX. 

OF  DETENTION  OR  RESTITUTION  OF  THE  PURCHASE  MONEY  IN  CASES  OF- FRAUD. 

General  rule.     §  274 
Executed  contracts.     §  275 
Waiver  of  fraud.     §  276 

OF  RESCISSION  BY  PROCEEDINGS  IN  EQUITY. 
WHERE  THE  CONTRACT  is  EXECUTORY. 

CHAPTER  XXX. 
OF  THE  SUIT  FOR  RESCISSION  PROPER. 

General  principles.     §  277 

Defenses  to  suits  for  specific  performance.     §  278 

Placing  the  vendor  in  statu  quo.     §  279 

Interest.     Rents  and  profits.     Improvements.     §  280 

Pleading.     §  281 

Parties.     §  282 

CHAPTER  XXXI. 

OF  DOUBTFUL  TITLES. 

General  rules.     §  283 

Classification  of  cases  of  doubtful  titles.     §  284  . 

Cases  in  which  the  title  will  be  held  free  from  doubt.     §  285 

Doubtful  titles  at  law.     §  286 

Inconclusiveness  of  judgment  or  decree.     §  287 

Special  agreements  as  to  the  title.     §  288 

Parol  evidence  to  remove  doubts.     §  289 

Equitable  title.     Adverse  claims.     §  290 

Defeasible  estates.     §  291 

Title  as  dependent  upon  adverse  possession.     §  292 

Presumptions  from  lapse  of  time.     §  293 

Title  as  affected  by  notice.     §  294 

Burden  of  proof.     §  295 

Illustrations  of  the  foregoing  principles.     §   296 

Errors  and  irregularities  in  judicial  proceedings.     §  297 

Sale  of  the  estates  of  persons  under  disabilities.     §  298 

Want  of  parties  to  suits.     §   299  , 

Defective    conveyances    and    acknowledgments.      Imperfect    registration. 

§  300 

Construction  of  deeds  and  wills.  §  301 
Competency  of  parties  to  deeds.  §  302 
Title  as  dependent  upon  intestacy.  Debts  of  decedent.  §  303 


CONTEXTS.  XIX 

Ineumbrances.     §  304 

Admitted  incumbrances.     §   305 

Ineumbrances  which  make  the  title  doubtful.     §  306 

Apparently  unsatisfied  incumbrances.     §  307 

CHAPTER  XXXII. 
OF  THE  RIGHT  OF  THE  VENDOR  TO  PEBFECT  THE  TITLE. 

Before  the  time  fixed  for  completing  the  contract.     §  308 
After  the  time  fixed  for  completing  the  contract.     §  309 
Exceptions:    (1)    Where  time  is  material.     §  310 

(2)  Where  the  covenants*  are  mutual  and  dependent.     §  311 

(3)  Waiver  of  the  right.     §  312 

(4)  Loss  and  injury  to  the  purchaser.     §  313 

(5)  Fraud  of  the  vendor.     §  314 

(6)  Want  of  colorable  title.     §  315 

(7)  Laches  of  vendor.     §  316 

_(8)    Effect  of  special  agreements.     §   317 

(9)   Effect  of  notice  and  request  to  perfect  the  title.     §  318 
In  what  proceedings  the  right  may  bo  asserted.     §  319 
Reference  of  the  title  to  master  in  chancery: 

When  directed.     §  320 

When  refused.     §  321 

At  what  stage  of  the  proceedings  reference  may  be  made.     §  322 

Procedure.     Costs.     §  323 
Interest  on  the  purchase  money  while  title  is  being  perfected.     §  324 

CHAPTER  XXXIII. 

OF  THE  RIGHT  OF  THE  VENDOR  TO  REQUIRE  THE  PURCHASER  TO  TAKE  THE 
TITLE  WITH  COMPENSATION  FOR  DEFECTS. 

General  rule.     §  325 

Exceptions.     §  326 

Indemnity  against  future  loss.     §  327 

CHAPTER  XXXIV. 

WHERE  THE  CONTRACT  HAS  BEEN  EXECUTED.    OF  THE  REMEDY  BY  INJUNCTION 
AGAINST  THE  COLLECTION  OF  THE  PURCHASE  MONEY. 

General  observations.     §  328 
Fraud  on  the  part  of  the  grantor.     §  329 
Want  of  opportunity  to  defend  at  law.     §  330 
Insolvency  or  non-residence  of  grantor.     §  331 

Where  the  estate   is   incumbered.      §   632 

Foreclosure  of  purchase-money  mortgage,     §   333 

Where  there  are  no  covenants  for  title.     §  334 

Temporary  and  perpetual  injnnction.     §  335 

Resume.     §  336 

Where  there  is  no  present  right  to  recover  substantial  damages  for  breach 
of  the  covenants.     §  337 


XX  CONTENTS. 

CHAPTER  XXXV. 
OF  FBAUD  AND  MISTAKE. 

Fraud  on  the  part  of  the  grantor.     §  338 
General  principles: 

Damages  in  equity.     §  339 
Mistake  of  fact: 

General  rule.     §  340 

Negligence  of  purchaser.     §  341 

Immaterial  mistakes.     §   342 

Mistakes  as  to  quantity.     §  343 
Mistake  of  law: 

General  rule.     §  344 

Distinction  between  ignorance  of  law  and  mistake  of  fact.     §  345 

Erroneous  construction  of  devise  or  grant.     §  346 

Where  the  construction  of  the  law  is  doubtful.     §  347 

Misrepresentation  of  the  law  by  the  vendor..     §  348 


[BEFKKE.N'CK.S  ARE  TO  PAGES.] 


Abbott  v.  Allen,  256,   258,   276,  278, 

447,  449,  637,  848. 
Abbott  v.  Hills,  381 
Abbott  v.  James,  721,  770 
Abbott  v.  Ronan,  368 
Abby  v.  Goodrich,  380 
Abel  v.  Hethcote,  731 
Abendroth  v.  Greenwood,  34 
Abercombe  v.  Owings,  4V  7 
Aberdeen  v.  Blackman,  282 
Abernathy  v.  Boazman,  259,  335 
Abernathy  v.  Phillips,  214 
Able  v.  Chandler,   112 
Abner  v.  York,  848 
Abraham  v.  Mieding,  738 
Abrams  v.  Rhoner,  738,  740,  745 
Ackerman  v.  Smiley,  547 
Adair  v.  McDonald,  575 
Adami  v.  Backer,  754,  758 
Adams  v.  Baker,  337 
Adams  v.  Conover,  258,   375,  409 
Adams  v.  Fairbain,   596 
Adams  v.  Gibney,  343 
Adams  v.  Heathcote,  190,  192% 
Adams  v.  Henderson,  776 
Adams  v.  Kibler,  82 
Adams  v.  James,  251 
Adams  v.  Messenger,  492 
Adams  v.  Reed,  556,  641 
Adams  v.  Ross,  340,  548 
Adams  v.  Smith,  141 
Adams  v.  Stevens,  574 
Adams  v.  Valentine,  776,  828 
Adamson  v.  Rose,  213 
Aday  v.  Echols,  489 
Addleman  v.  Mormon,  843 
Adkins  v.  Tomlinson,  259,  274 
Agan  v.  Shannon,  105 
Aiken  v.  Franklin,  257 
Aiken  v.  McDonald,  397,  401,  412 
Aiken  v.  Sanford,  33 
Ake  v.  Mason,  305 
Akerly  v.  Vilas,  633 
Ala.  Life  Ins.  Co.  v.  Boykin,  67 
Albro  v.  Garland,  791 
Alday  v.  Rock  Island  Co,  118 
Alden  v.  Parkliill,  470 
Alexander  v.  Kerr,   195 
Alexander  v.  McAuley,  640 


Alexander  v.  Merry,  63 

Alexander  v.  Mills,  712,  713,  714,715 

Alexander  v.  Newton,  561 

Alexander  v.  Schreiber,  311 

Alexander  v.  Staley,  *22 

Alexander  v.  Utley,  194,  578 

Alger  v.  Anderson,  857 

Alkus  v.  Goettmann,  769 

Allaire  v.  Whitney,  687,  688 

Allemong  v.  Gray,  339 

Allen  v.  Allen,  264 

Allen  v.  Anderson,  2i3,  216,  500 

Allen  v.  Atkinson,   166,   594,   749 

Allen  v.  Denoir,  67 

Allen  v.  Elder,  561 

Allen  v.  Hammond,  859 

Allen  v.  Hazen,  148,  149 

Allen  v.  Holton,  340,  548 

Allen  v.  Hopson,  600,  685,  835 

Allen  v.  Kennedy,  265,  377 

Allen  v.  Lee,  284,  335 

Allen  v.  Little,  267,  379,  382 

Allen  v.  Pegram,  445,  648 

Allen  v.  Phillips,  606,  .732,  738 

Allen  v.  Sayward,  539 

Allen  v.  Taylor,  335 

Allen  v.  Thornton,  836,  838 

Allen  v.  Yeater,   149 

Allis  v.  Nininger,  363,  364 

Allison  v.  Allison,  337,  356 

Allison  v.  Shilling,   496,  499 

Allstead  v.  Nicoll,  799 

Almy  v.  Hunt,  292 

Altemus  v.  Nichols,  527 

Altgelt  v.  Mernitz,  108 

Alvarez  v.  Brannan,  13,  538.  661,  806 

Alvord  v.  Waggoner,  357,  382 

American  Assoc.  v.  Short,  636 

Ames  v.  Cosby,  318,  370 

Amick  v.  Bowyer,  606 

Amos  v.  Cosby,  318,  370 

Anderson  v.  Ahderson,  181 

Anderson  v.  Creston  L.  Co.,  794 

Anderson  v.  Foulke,  78 

Anderson  v.  Knox,  318,  374 

Anderson  v.  Lincoln,     195,    446,    640, 

847 

Anderson  v.  Long,  657 
Anderson  v.  Snyder,  822 
Anderson  v.  Strasburger,      167,      727 

795,  797 


XX11 


TABLE    OF    CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Anderson  v.  Washabaugh,     357,     421, 

000. 

Anderson  v.  Wilder,  528 
Andrews  v.  Appel,  208,  314,  315,  321 
Andrews  v.  Babcock,    701,    731,    792, 

810 

Andrews  v.  Richardson,   137,    140 
Andrews  v.  Spurrs,  560 
Andrews  v.  Wolcott,  381,  385 
Andrews  v.  Word,   148,  777 
Andrews  v.  S.  &  L.  Smelting  Co.,  242, 

250,  351,  416,  662 
Ankeny  v.  Clark,   149,   701,  731,  821, 

826 

Anonymous,  440 

Anthony  v.  Rockefeller,   335,  362 
Appleton  v.  Banks,  156 
Appovvel  v.  Monnoux,  382 
Arbib,  In  re,  504 
Archer  v.  Archer,  779 
Argall  v.  Raynor,  721,  752,  760 
Arledge  v.  Brooks,  207 
Armstead  v.  Hundly,  252,  858,  860 
Armstrong's  App.,  116 
Armstrong  v.  Brown.   793 
Armstrong  v.  Darby,  439,   440,   515 
Armstrong  v.  Harshorn,  103 
•Arnett  v.  Smith,  795 
Arnold  v.  Carl,  843 
Arnold  v.  Chamberlain,  304 
Arnstein  v.  Burroughs,  828 
Arrison  v.  Harmstead,  182 
Arthur  v.  Weston,  46 
A.  S.  Abell  Co.  v.  Ins.  Co.,  745 
Asay  v.  Lieber,  668 
Ash  v.  Holder,  506 
Ashbaugh  v.  Murphy,  74  , 

Ashburner  v.  Sewell,  197,  504 
Asher  Lumber  Co.  v.  Cornett,  377 
Ashworth  v.  Mounsey,  28 
^»tor  v.  Miller,  379,  385 
Athens  v.  Nale,  332 
Athey  v.  McHenry,  559 
Atkins  v.  Bahrett,  36 
Atkinson  v.  Taylor,  710,  764 
Atty.-Gen.  v.  Day,  493,  829 
Atty.-Gen.  v.  Purmort,  339 
Atwood  v.  Chapman,   664 
Atwood  v.  Frost,  116 
Aufricht  v.  Northrup,  284,  286,  336 
Augsberg  v.  Meredeth,  803 
Austin  v.  Barnum,  787 
Austin  v.  Ewell,  481,  492 
Austin  v.  McKinney,  370 
Austin  v.  Richards,   337 
Auwerter  v.  Mathiot,  118,  126 
Aven  v.  Beckom,  155 
Averett  v.  Lipscombe,  25,  32,  725,  812 
Averell  v.  Wilson,  552 
Avery  v.  Aikens,  545 
Avery  v.  Dougherty,  343,  353 


Axtel  v.  Chase,  200,  363,  365,  556,  69'8 
Ayer  v.  Bric^  Co,  288  . 
Aylett  v.  Ashton,  495,  830,  831 
Ayling  v.   Kramer,  301 
Ayres  v.  Mitchell,  194 

B. 

Babbitt  v.  Doe,  103 

Babcock  v.   Case,   239,  24;J,   622,   680, 

698,   856 

Babcock  v.  Collins,   46 
Babcock  v.  Day,  673 
Babcock  v.  Trice,  469 
Babcock  v.  Wilson,   38,   150 
Bacchus  v.  McCoy,  256,  257,  265 
Backhnrst  v.   Mayo,    127 
Bacon  v.  Lincoln,  277,  278 
Bagley  v.   Fletcher,   148 
Bailey  v.  Hopper,  529 
Bailey  v.  James,   37,   500,   093,   826 
Bailey  v.  Miltenberger,  354 
Bailey  v.  Murphy,  335 
Bailey  v.  School,  90 
Bailey  v.  Smock,  243 
Bailey  v.  Snyder,  667 
Bailey  v.  Timbe'rlake.  573 
Bain'v.  Fothergill,  213.  225,  490 
Bainbridge  v.  Kinnaird,  495 
Baird  v.  Goodrich,   635,   833,   839 
Baird  v.  Laevison,  840 
Baker  v.  Baker,  89 
Baker  v.  Bradt,  283 
Baker  v.  Corbett,  216,  404,  506 
Baker  v.  Howell,  404 
Baker  v.  Hunt,  256 
Baker  V.  Massev.  561.  572 
Baker  v.  Pyatt,  573,  576 
Baker  v.  Railsback.  469,  497 
Baker  v.  Savidge,  679 
Baker  v.  Shy,  772,  795 
Balch  v.  Arnold,  519 
Baldridge  v.  Cook,  197 
Balclry  v.   Parker,  826 
Baldwin  v.  McGrath,  798 
Baldwin  v.  Munn,   211,  213.  215,  217 
Baldwin  v.  Kerlin,  560 
Baldwin  v,  Salter,  797 
Baldwin  v.  Trimble,  776,  787 
Baliour  v.  Whitman,  297 
Ballard  v.   Burroughs,  220,  335 
Ballard  v.  Child,  340 
Ballard  v.  Johns.  115 
Ballard  v.  Way.  30 
Ballard  v.  Walker,   192 
Ballentine  v.  Clark,  570 
Ballon  v.  Lucas,  664 
Ballou  v.  Sherwood,  738 
Balmanno  v.  Lumley,  495.  825.  830 
Baltimore,  etc.,  Society  v.  Smith,  213 
Bamford  v.  Harris.  457 
Bandy  v.  Cortright,  343 


TABLE  OF    CASES. 

[REFERENCES   ABE  TO   FACES.] 


XXU1 


Bangs  v.  Barrett,  821 

Hank  v.  Bank,  855 

Bank  v.  Baxter,   238 

Bank  v.  Clements,  320,  405 

Bank  v,  Ettinge,  697 

Bank  v.  Loughrau,  749 

Bank  v.  Mersereau,  483,  529,  538 

Bank  v.  Risley,  130 

Bank  of  Col.  v.  Hayner,  190 

Bank  of  U  S.  v.  Bank  of  Wash.,   127 

Hank  of  U.  S.  v.  Cochran,  92 

Bank  of  U.  S.  v.  Daniel,   808 

Bank  of  Winchester  v.    White,   424 

Banks  v.  Ammon,  52,   112,  238,  668 

Banks  v.  Walker,   460,  G'48,   670,   845 

Banks  v.  Whitehead,  360,  433 

Bankson  v.  Lagerlof,  288 

Bannister  v.  Higginson,   103 

Bannister  v.  Read,  584 

Baptiste  v.  Peters,  247,  850,  859 

Barber  v.  Gery,  787 

Barbour  v.  Mickey,  487,  497 

Barbour  v.  Nichols,  215 

Bardeen  v.  MarKstrum,  448 

Bardell  v.  Trustees,  347 

Barden  &  Stickney,  342 

Bardsley's  Appeal,  701 

Barger  v.  Gery,  730,  787 

Barickman  v.  Kuykendall,  628,  830 

Barker  v.  Circle,  541 

Barker  v.  Kuhn,  275 

Barkhamstead  v.  Case,  650,  835 

Barlow  v.  Delaney,  70,  335,  356,  370, 

422 

Barlow  v.  McKinley,  305,  308 
Barlow  v.  St.     Nicholas     Bank,     295, 

296 

Barlow  v.  Scott,   150 
Barnard  v.  Brown,  738 
Barnard  v.  Duncan,   153,  154 
Barnard  v.  Lee,  803,  812 
Barnes'  Appeal,  492 
Barnes  v.  Bartlett,  560 
Barnes  v.  Lightfoot,  337 
Barnes  v.  U.  P.  R.  Co.,  241 
Barnes  v.  Wood,  491 
Barns  v.  Wilson,  303 
Barnett  v.  Clark,  633,  839 
Barnett  v.  Garnis,  189 
Barnett  v,  Hughey,   155,  391 
Barnett  v.  Keehn*  286,  341 
Barnett  v.  Montgomery,  346,  419 
Barnett  v.  Shackelford,  64 
Barnhart  v.  Hughes,  294 
Barnwell  v.  Harris,  714,  737 
Barr  v.  Gratz,  529 
Barr  v.  Greeley,  368,  406 
Barr  v.  Flemings,  354 
Barrere  v.  Bartet,  354 
Barrett  v.  Churchill,  83 
Barrett  v.  Gaines,  800 


Barrett  v.  Hughey,  402 

Barrett  v.  Porter,  359 

Barron  v.  Easton,   13 

Barron  v.  Mullin,  78 

Barrow  v.  Bispham,  33 

Barry  v.  Guild,  361,  648 

Bartee   v.   Tompkins,    113 

Earth  v.  Ward,  293 

Bartholomew  v.  Candee,  263 

Bartle  v.  Curtis,  78^ 

Bartlett  v.  i>lanton,  765 

Bartlett  v.  Farrington,  353 

Bartlett  v.  London,   605 

Bartlett  v.  Magee,  734 

Bartlett  v.  Salmon,  777 

Bartlett  v.  Tarbell,   446 

Barton  v.  Bouvien,  826 

Barton  v.  Long,  248 

Barton  v.  Morris,  527 

Barton  v.  Rector,  190,  589 

Basford  v.  Pearson,  259 

Bashore  v.  Whisler,  674 

Baskin  v.  Houser,  821 

Bass  v.  Gilliland,  493,  821 

Bassett   v.    Lockwood,    118,    136,    140, 

141 

Bassett  v.  Welch,  293 
Baston  v.  Clifford,  207,  584,  698 
Batchelder  v.  Curtis,    320 
Batchelder  v.  Macon,   706,   723 
Batchelder  v.  Sturgis,  299,  323 
Bateman  v.  Johnson,  36,  47 
Bateman's  Petition,  67 
Bates  v.  Bates,  568 
Bates  v.  Delavan,  648,  678,  693,  858, 

861,  862 

Bates  v.  Foster,  340 
Bates  v.  Lyons,  797 
Bates  v.  Swiger,  481,  494,  513 
Batley  v.  Foederer,  777 
Batterman  v.  Pierce,  447 
Batterton  v.  Smith,  335 
Battle  v.  Rochester  City  Bank,  584 
Baugh  v.  Price,  188 
Baum  v.  Dubois,  201 
Baumeister  v.  De  Muth,  798 
Baumeister  v.  Silver,  742 
Baxter  v.  Aubrey,  594,  749 
Baxter  v.  Bradbury,    256,     273,     537, 

539 

Baxter  v.  Howell,  58 
Baxter  v.  Lewis,  200 
Baxter  v.  Ryerss,   382 
Bayliss  v.  Stinson,  713,  718,  719.720 
Baynes  v.  Bernhard,  203 
Baze  v.  Arper,  69 
Beach  v.  Hud.  R.  L.  Co.,  776,  823 
Beach  v.  Packard.  373 
Beach  v.  Miller.  305 
Beach  v.  Waddell,  447,  468,  639 
Beal  v.  Beal,  542 


XXIV 


TABLE   OF    CASES. 


[REFERENCES   ARE  TO  PAGES.] 


Beale  v.  Seively,  4G1,  849 

Beall  v.  Davenport,  506,  553 

Beall  v.  Taylor,  34(5 

Beamun  v.  Simmons,  579 

Beaman  v.  Whitney,  58 

Beams  v.  Mila,  766 

Bean  v.  Herrick,  239 

Bean  v.  Mayo,  292,  315 

Bearce  v.  Jackson,  25U 

Beard  v.  Delaney,  229,  231.  451,  G33 

Beardslee  v.  Underbill,  727,  7G3 

Beardsley  v.  Knight,  261,  380,  381 

Beaseley  v.  Phillips,  336,  377,  404 

Beauchamp  v.  Handley,  814 

Beauchamp  v.  Winn,  874 

Beauman  v.  Whitney,  46 

Beaumont  v.  Yeatman,  60 

Beaupland  v.  McKeen,  413,   G65,  66(5, 

668 

Beck  v.  Bridgman,  492 
Beck  v.  Simmons,  189,  198,  556,  637, 

692 

Beck  v.  Ulrich,  654 
Beckman  v.  Henn,  275 
Beckwith  v.  Kouns,  739 
Bedell  v.  Christy,  356,  367 
Bedell  v.  Smith,  17,  202 
Beddoe  v.   Wadsworth,  262,   351,   377, 

381,  387 
Beebe    v.    Swartwout,    261,    356,    366, 

458,  552,  630,  638,  678 
Beech  v.  Steele,  35 
Beecher  v.  Baldwin,  398 
Beer  v.  Leonard,  711 
Beeson  v.  Beeson,  137 
Beidelman  v.  Foulk,  670 
Beioley  v.  Carter,  712,  713 
Belcher  v.  Weaver,  67,  71 
Belden  v.  Seymour,  155,  156,  402 
Bell  v.  Adams,  529 
Bell  v.  Duncan,  174 
Bell  v,  Flaherty,  120 
Bell  v.  Higgins,  356 
Bell  v.  Holtby,  714 
Bell  v.  Kennedy,  203 
Bell  v.  Sternberg,  814 
Bell  v.  Thompson,  455,  502 
Bell  v.  Twilight,  546,  548 
Bell  v.  Vana,  192 
Bell  v.  Woodward,  51 
Bellamy  v.  Ragsdale,  223,  616 
Bellefont  Iron  W7ks.  v.  McGuire,  445 
Bellinger  v.  Society,  354 
Bellows  v.  Cheek,  603 
Bellows  v.  Litchfield,  382,  417,  427 
Belmont  v.  Coman,  286 
Belmont  v.  O'Brien,  771,  787 
Bemis  v.  Bridgman,  649 
Bemis  v.  Smith,  372 
Bender  v.   Fromberger,  2G4,  270,  271, 

277,  339,  356,  395,  414 


Benedict  v.  Oilman,  223 

Benedict  v.  Hunt,  682 

Benedict  v.  Williams,  808 

Benjamin  v.  Hobbs,  G96 

Bennet  Col.  v.  Cary,  460 

Bennett  v.  Aorains,  452,  453 

Bennett  v.  Adams,  483 

Bennett  v.  Bittle,  353 

Bennett  v.  Caldwell,  139 

Bennett  v.  Fuller,  11 

Bennett  v.  Jenkins,  270,  320,  414,  417 

Bennett  v.  Keehn,  286,  341 

Bennett  v.  Latham,  337,  414 

Bennett  v.  Pierce,  845,  851 

Bennett  v.  Waller,  439,  540,  545 

Bennett  v.  Womack,   145 

Bennett's  Case,  440 

Benningfield  v.  Reed,  92 

Bensel  v.  Gray,   132,  507 

Bensinger  v.  Erhardt,  47 

Benson  v.  Coleman,  604 

Benson  v.  Cromwell,  193 

Benson  v.  Markol,  562,  871 

Benson  v.  Shotwell,     181,     625,     724, 

741,  763 

Benson  v.  Yellott,  90 
Bentley  v.  Craven,  730,  733 
Bentley  v.  Long,  137 
Benton  v.  Sentell,  519 
Bergen  v.  Eby,  566 
Bergmann  v.  Klein,  789,  790 
Bernardy  v.  Mortgage  Co.,  531,  541 
Berrian  v.  Rogers,  117 
Berry  v.  Armstead,  855 
Berry  v.  Billings,  45 
Berry  v,  Lowell,  573 
Berry  v.  Van  Winkle,  489 
Berry  v.  Walker,  510 
Berry  v.  Webb,  559 
Berryman  v.  Schumaker,  777 
Bertram  v.  Curtis,  303 
Bethell  v.  Bethell,   145,  146,  248,  252, 

269,  270,  444,  535,  650 
Bethune  v.  McDonald,  476,  477 
Betts  v.  Union  Bank,  402 
Bever   v.   North,   363,    369,    373,   424, 

657 

Beverly  v.  Lawson,  493,  816 
Tlevins  v.  Vansant,  534 
Beyer  v.  Braender,  595 
Beyer  v.  Schulze,  371,  374 
lUbb  v.  Prather,  625 
T.ibb  v.  Wilson,  504 
IHckford  v.  Page,  256,  266,  325,  382 
Bickley  v.  Biddle,  112 
Bicknell  v.  Comstock,  737 
Bierer  v.  Fretz,  219 
Bigelow  v.  Hubbard,  300 
Bigelow  v.  Jones,  359 
Bigham  v.  Bigham,  284 
Bigler  v.  Morgan,  47,  73,  153,  220 


TABLE   OF    CASES. 


[REFERENCES  ABE  TO   PAGES.] 


Binford's  Appeal,  78,  752 

Bingham  v.  Bingham,  803,  809,  871 

Bingham  v.  Maxey,  109 

Binghum  v.  Weiderwax,  402 

Binzer  v.  Epstein,  772 

Birch  v.  Cooper,  734 

Bircher  v.  Watkins,  273,  275,  278 

Bird  v.  Smith,  77 

Birdsall  v.  Walton,  486 

Birney  v.  Hann,  382,  390 

Bishop  v.  O'Connor,  77,  87,  113,  140 

Bitner  v.  Brough,  211,  213,  220,  225, 

497 

Bitzer  v.  Orban,  698,  700 
Bixby  v.  Smith,  753 
Black  v.  Aman,  763 
Black  v.  Barton,  338 
Black  v.  Coon,  315 
Black  v.  Croft,  600 
Black  v.  Dressel,  116 
Black  v.  Grant,  52 
l>iack  v.  Gregg,  58 
Black  v.  Stone,  556 
Black  v.  Walker,  603,  604 
Blackburn  v.  Randolph,  570 
Blackburn  v.  Smith,  161,  620. 
Black  Hills,  N.  B.  v.  Kellogg,  463,811 
Blackie  v.  Hudson,  292 
Blacklow  v.  Laws,  163 
Blackmore  v.  Shelby,  537,  538,   805 
Blackshire  v.  Homestead  Co.,  275 
Blackwell  v.  Atkinson,   377 
Blackwell  v.  Lawrence  Co.,  213,  217 
Blair  v.  Claxton,  467 
Blair  v.  Perry,  466 
Blair  v.  Rankin,  831 
Blake  v.  Everett,  301 
Blake  v.  Phinn,  28,  825 
Blake  v.  Tucker,  5,  19,  547 
Blakemore  v.  Kimmons,  771 
Blakeslee  v.  Ins.  Co.,  540 
Blanchard  v.  Blanchard,      300, 

359,  362,  410 

Blanchard  v.  Brooks,   340,   548 
Blanchard  v.  Ellis,  535 
Blanchard  v.  Hazeltine,  343 
Blanchard  v.  Hoxie,  271,  278,  433 
Blanchard  v.   Stone,   194 
Blanck  v.  Sadlier,  728,  780 
Bland  v.  Bowie,  139 
Bland  v.  Thomas,  435 
Blapks  v.  Ripley,  472 
Blanks  v.  Walker,  628 
Blann  v.  Smith,  203 
Blanton  v.  Ky.  Dist.  Co.,  81 
Blasser  v.  Moats,  445 
Bledsoe  v.  Doe,  44 
Bledsoe  v.  Little,  51 
Bletz  v.  Willis,  444 
Blevins  v.  Smith,  300 
Bliss  v.  Negus,  656 


Blodgett  v.  Hitt,  127,  513 

Blondeau   v.   Sheridan,  260,   303,   311, 

360 

Bloom  v.  Welsh,  121 
Bloom  v.  Wolf,  156,  396 
blossom  v.  Knox,  392 
Blossom  v.  Van  Court,  292 
Blydenburgh  v.  Cotheal,  262,  356,  377 
Boar  v.  McCormick,  673 
Boas  v.  Farrington,  24 
Board  of  Commrs.  v.  Younger,  236 
Board  of  Ed.  v.  Reilly,  768 
Boardman  v.  Taylor,  573 
Boatman  v.  Wood,  392 
Bobb  v.  Barnuin,  48 
Bodley  v.  Bodley,  681 
Bodley  v.  McChord,  35,  616 
Boehm  v.  Wood,  798 
Bogan  v.  Baughdrill,  492 
Bogart  v.  Burkhalter,  601 
Boggess  v.  Robinson,  151 
Boggs  v.  Bodkin,  740 
Boggs  v.  Hargrave,  82,  84,  86 
Bogy  v.  Shoab,  540,  545,  548 
Bohanan  v.  Bohanan,  559 
Bohlcke  v.  Buchanan,  289 
Bohm  v.  Bohm,  547 
Bohm  v.  Fay,  739 
Boiler  Co.  v.  Gordon,  727 
Bolen  v.  Lilly,  528 
Bolgiano  v.  Cook,  76,  90 
Bollis  v.  Beach,  520 
Boiling  v.  Jones,  109,  110 
Boiling  v.  Teel,  65 
Bolton  v.  Branch,  163,  594 
Bolton  v.  School  Board,  737 
Bond  v.  Montague,  506 
Bond  v.  Ramsey,  112,  248,  249,  856 
Bonham  v.  Walton,  244,  628 
Bonner  v.  Johnston,  486 
Bonner  v.  Lessly,  133 
Booker  v.  Bell,  330,  358,  391,  430 
Booker  v.  Meriweather,  430,  445 
Bool  v.  Mix,  258 
Boon  v.  McHenry,  265,  273 
Boone  v.  Armstrong,  525 
Boone  v.  Chiles,  180 
Boorum  v.  Tucker,  80 
Booth  v.  Cook,  69 
Booth  v.  Ryan,  194,  634 
Booth  v.  Saffold,  202,  615 
Booth  v.  Starr,  363,  383,  385 
Boothby  v.  Hathaway,  256,  276 
Boothby  v.  Waller,  486 
Booth  royd  v.  Engles,  60 
Bordeaux  v.  Carr,  476 
Borden  v.  Borden,  781 
Bordewell  v.  Colie,  371 
Boreel  v.  Lawton,  281,  357 
Boro  v.  Harris,  120 
Bostick  v.  Winton,  119 


XXVI 


TABLE    OF    CASES. 


[ REFERENCES   ARE  TO  PAGES.] 


Boston  v.  Binney,  4G4 

Boston  Steamboat  Co.  v.  Manson,  354 

Bostwick  v.  Beach,  492 

Bostwick  v.  Lewis,  661,  687 

Bostwick  v.  Williams,   300,  334,  356 

Boswell  v.  Buchanan,  544 

Boswell  v.  Mendheim,  681 

Botsford  v.  McLean,  566 

Botsford  v.  Wilson,  648 

Bott  v.  Maloy,  748 

Botto  v.  Berges,  41 

Bottorf  v.  Smith,  258,  269,  450 

Bourg  v.  Niles,  776 

Bowden  v.  Achor,  688 
'  Bowen  v.  Jackson,  203 

Bowen  v.  Mandeville,  14,  687 
Bowen  v.  Thrall,  145,  409,  471 
Bower  v.  Cooper,  21 

Bowery  N.  B.  v.  Mayor,  727 
Bowersock  v.  Beers,  792 
Bowie  v.  Brahe,  828 
Bowers  v.  Chaney,  90 
Bowles  v.  Stewart,  236 
Bowley  v.  Holway,  462,  469 
Bowlin  v.  Pollock,  860 
Bowling  v.  Benzer,  345 
Bowman  v.  "Wittig,  52 
Bowne  v.  Potter,  552 
Bowne  v.  WTolcott,  280,  332 
Boyce  v.  Grundy,  689,  691,  827 
Boyce  v.  McCullogh,  578,  581 
Boyd  v.  Bartlett,  292,  366 
Boyd  v.  Hallowell,  726 
Boyd  v.  Hazeltine,  343 
Boyd  v.  McCullough,  669 
Boyd  v.  Schlessinger,  132 
Boyd  v.  Whitfield,  321 
Boyd  v.  Woodbury  Co.,  725 
Boyer  v.  Amet,  196,  507,  678 
Boyer  v.  Porter,  841 
Boykin  v.  Cook,  128 
Boykin  v.  Rain,  67 
Boylan  v.  Townley,  721 
Boyle  v.  Edwards,  431 
Boyle  v.  Rowand,  819 
Boyles  v.  Bee,  37 
Boyman  v.  Gutch,  719 
Brackenridge  v.  Dawson,  99,  153 
Bradford  v.  Bradford,  560 
Bradford  v.  Dawson,  71 
Bradford  v.  Potts,  198,  668,  671 
Bradley  v.  Chase,  252 
Bradley  v.  Dibrell,  360,  676,  855 
Bradley  v.  Dike,  294 
Bradley  v.  Mnnton,  491 
Bradshaw  v.  Atkins,  570,  576 
Bradshaw  v.  Crosby,  318 
Bradshaw's  Case,  275 
Brady  v.  Peck,  433 
Brady  v.  Spurck,  256,   259,  263,   363, 
430 


Braman  v.  Bingham,  317 

Brandt  v.  Foster,  256,  258,  271,  368 

391,  392,  410,  466,  650 
Branger  v.  Manciet,  351 
Branham  v,  San  Jose,  138 
Brannum  v.  Ellison,  607,  622 
Brantley  Co.  v.  Johnson,  444 
Brantley  v.  Kee,  53 
Brass  v.  Vandecar,  299,  311,  323 
Brassfield  v.  Walker,  744 
Brashier  v.  Gratz,  803 
Bratton  v.  Guy,  269 
Braun  v.  Vollmer,  747 
Breckenridge  v.  Hoke,  820 
Breckenridge  v.  Waters,  650,  652 
Bree  v.  Holbech,  648,  649 
Broitliaupt  v.  Thurmond,  20,  276 
Brereton  v.  Barry,  188 
Brett  v.  Marsh,  511 
Brewer  v.  Fox,  163 
Brewer  v.  Herbert,  774 
Brewer  v.  Parker,  444 
Brewer  v.  Wall,  499 
Brewton  v.  Smith,  561 
Brick  v.  Coster,  634,  668 
Bricker  v.  Bricker,  288,  373 
Brickhouse  v.  Crosby,  581 
Bridge  v.  Wellington,  50 
Bridge  v.  Young,  207 
Briegel  v.  Moehler,  573 
Briegel  v.  Muller,  559 
Briggs  v.  Gillam,  189 
Briggs  v.  Morse,  315 
Brigham  v.  EvAns,  214,  219 
Bright  v.  Boyd,  139,  223 
Brinckerhoff  v.  Phelps,  211,  227 
Brisbane  v.  McCrady,  312 
Briscoe  v.  Mining  Co.,  443 
Bristor  v.  McBean,  316 
British-Am.  Mtge.  Co.  v.  Todd,  415 
Britt  v.  Marks,  253 
Brittain  v.  McLain,  603,  606 
Britton  v.  Ruffin,  369 
EBrizzolara  v.  Mosher,  484 
Broadbelt  v.  Loew,  790 
Broadway  v.  Buxton,  337,  558 
Broadwell  v.  Phillips,  519 
Brobst  v.  Brock,  137 
Brock  v.  Hidy,  205 
Brock  v.  O'Dell,  561,  871 
Brock  v.  Southwick,  473,  819 
Brockenbrough  v.  Blythe,  819,  821 
Brodie  v.  Watkins,  466 
Brokaw  v.  Duffy,  769 
Bronk  v.  McMahon,  765 
Bronson  v.  Coffin,  154,  290,  301,  323 
Brooke  v.  Clarke,  816 
Brooklyn  v.  Brooklyn     City     R.     Co, 

727 
Brooklyn    Park    Com.    v.    Armstrong, 

731,  785 


TABLE   OF    CASES. 


XXV 11 


[RKFEBENCKS   ABE   TO  PAGES.] 


Brookmau  v.  Kurzraan,  764 

Brooks  v.  Black,  401,  417,  422 

Brooks  v.  Chaplin,  57 

Brooks  v.  Moody,  292,  315,  318,  469, 

838 

Brooks  v.  Riding,  248,  867 
Brown  v.  Allen,  358,  368 
Brown  v.  Bank,  288 
Brown  v.  Bellows,  41,  275,  781 
Brown  v.  Brodhead,  315 
Brown  v.  Brown,  137 
Brown  v.  Cannon,  34,  739,  742,  743 
Brown  v.  Christie,  130,  134 
Brown  v.  Combs,  127 
Brown  v.  Connell,  512 
Brown  v.  Corson,  367 
Brown  v.  Covilland,  33,  34 
Brown  v.  Dickinson,  370,  372,  391 
Brown  v.  Eaton,  205 
Brown  v.  Farrar,  69 
Brown  v.  Feagin,  436 
Brown  v.  Frost,  82 
Brown  v.  Gammon,  35 
Brown  v.  Haff,  724,  797,  805 
Brown  v.  Harrison,  588 
Brown  v.  Hearon,  414,  427 
Brown  v.  Herrick,  251 
Brown  v.  Jackson,  548 
Brown  v.  Lunt,  60 
Brown  v.  Manning,  238 
Brown  v,  Manter,  50,  528,  529 
Brown  v.  McCormick,  531 
Brown  v.  McMullen,  427 
Brown  v.  Metz,  377 
Brown  v.  Montgomery,  238,  634 
Brown  v.  Moore,  58 
Brown  v.  Morehead,  657,  660 
Brown  v.  Phillips,  526 
Brown  v.  Reeves,  678 
Brown  v.  Rice,  246 
Brown  v.  Staple,   287,   380,   381,   386, 

389,  520,  523,  525,  526 
Brown  v.  Starke,  35 
Brown  v.  Taylor,  360,  427,  428 
Brown  v.  Wetter,  77,  583,  708,  764 
Browning  v.  Canal  Co.,  375 
Browning  v.  Clymer,  200 
Browning  v.  Estes,  618 
Browning  v.  Still  well,  413 
Browning,  In  re,  78,  134 
Browning  v.  Wright,   147,   151,  338 
Broyles  v.  Bell,  693 
Bruce  v.  Luke,  545 
Bruington  v.  Barber,  373 
Brumfield  v.  Palmer,  616,  695 
Brumfit  v.  Morton,  30 
Brummel  v.  Hunt,  124 
Bruner  v.  Diamond,  73 
Bruner  v.  Meigs,  691,  769 
Bruns  v.  Schrciber,  305,  326 
Brush  v.  Ware,  172 


Bryan  v.  Boothe,  225 

Bryan  v.  Johnson,  473 

Bryan  v.  Lewis,  480 

Bryan  v.  Osborne,  195,  737 

Bryan  v.  Ramirez,  63 

Bryan  v.  Read,  757,  826,  830 

Bryan  v.  Salyard,  512 

Bryan  v.  Swain,  451,  470 

Bryan  v.  Booth,  247,  699,  855 

Bryant  v.  Fairfield,   127 

Bryant  v.  Hainbrick,  814 

Bryant,  In  re,  741,  792,  80G 

Bryant  v.  Wilson,  150 

Bryson  v.  Crawford,  584 

Buchanan  v.  Alwell,  587,  639,  817 

Buchanan  v.  Lornian,    203,    204,    588, 

698,  700 

Buck  v.  Clements,  320,  405 
Buck  v.  McCaughtry,  827 
Buck  v.  Waddle,  596 
Buckels  v.  Mouzon,  424 
Buckle  v.  Mitchell,  715 
Bucklen  v.  Hasterlik,  69,  70,  206,  738 
Buckles  v.  Northern  Bank  of  Ky.,  4-14 
Buckley  v.  Dawson,  212 
Buckmaster  v.  Grundy,  14,  207,  214 
Buckner  v.  Street,  285,  342,  649 
Buell  v.  Tate,  444,  459,  4G9,  633,  8-'2 
Buford  v.  Guthrie,  638,  806 
Building  Co.  v.  Fray,  439,  538 
Bulkley  v.  Hope,  27 
Bull  v.  Willard,  657 
Bullard  v.  Bicknell,  734 
Bullard  v.  Perry,  69 
Uullitt  v.  Coryell,  293 
BuIIitt  v.  E.  Ky  Land  Co.,  625 
Bullitt  v.  Songster,  605 
Bullock  v.  Adams,  487 
Bullock  v.  Beemis,  690 
Bullock  v..  Whipp,  572,  575 
Bulow  v.  Witte,  91 
Bumberger  v.  Clippinger,  769 
Bumnier  v.  Boston,  354 
Bumpass  v.  Anderson,  340 
Bumpass  v.  Platner,    447,    477,    637, 

848 

Bumstead  v.  Cook,  297 
Bundy  v.  Ridenour,  315 
Burbank  v.  Pillsbury,  301 
Burbridge  v.  Sadler,  337 
Bnrchard  v.  Hubbard,  524 
Burk  v.  Clements,  320,  405 
Burk  v.  Hill,  209,  305,  308 
Burk  v.  Serrill ,  214,  225,  229,  497 
Burk's  Appeal,  497 
liurke  v.  Beveridge,  531.  537 
Burke  v.  Davies.  587,  613,  808,  809 
Burke  v.  Elliott,  99,   101,   102 
iiurke  v.  Guinmey,  38 
Burke  v.  Johnson,  512 
Burke  v.  Nichols,  338 


XXV111 


TABLE   OF    CASES. 


[REFERENCES   ARE  TO  PAGES.] 


Burke  v.  Eyan,  770 

Burke  v.  Schreiber,  587 

Burkett  v.  Mumford,  606 

Burke tt  v.  Twyman,  519 

Burkholder  v.  Farmers'  Bank,  411 

Burley  v.  Shinn,  595 

Burlock  v.  Peck,  303 

Burnell  v.  Firth,  711 

Burnett  v.  Hamill,  90 

Burnett  v.  McCluey,  55 

Burnett  v.  Wheeler,  30,  190 

Burnham  v.   Laselle,  264 

Burns  v.  Hamilton,   109,   110,  868 

Burns  v.  Ledbetter,  128,  137 

Burr  v.  Greely,  358 

Burr  v,  Hutchinson,   571 

Burr  v.  Lamaster,  303 

Burr  v.  Todd,  231,  441,  814 

Burrill  v.  Jones,  156 

Burroughs  v.  McNeill,  516 

Burroughs  v.  Oakley,   190,  191,  748 

Burrow  v.  Scammel,  490,  491 

Burrows  v.  Locke,  236,  241 

Burrows  v.  Stryker,  445 

Burrows  v.  Yount,  206 

Burruss  v.  Wilkinson,  371 

Burston  v.  Jackson,  543 

Burt  v.  Wilson,  560 

Burtners  v.  Reran,  519,  529 

Burton  v.  Perry,  746 

Burton  v.  Reed,  392,  415,  535,  537 

Burwell  v.  Brown,  30 

Burwell  v.   Jackson,   20,  22,   36,   242, 

243,  246,  251,  718,  862 
Burwell  v.  Sollock,  798,  827 
Busby  v,  Treadwell,  198,  443,  838,  848 
Bush  v.  Adams,   404 
Bush  v.  Bush,  559,  573 
Bush  v.  Cole,   227 
Bush  v.  Collins,  512 
Bush  v.  Cooper,   348,  483,   543 
Bush  v.  Hicks,  568,  571 
Bush  v.  Marshall,  798 
Bustard  v.  Gates,  92 
Butcher    v.    Peterson,    391,    410,    493, 

867 

Butcher  v.  Rogers,  540,  545 
Butler  v.  Barnes,  377,  399,  417 
Butler  v.  Gale,   306,   308 
Butler  v.  Miller,  650,  864 
Butler  v.  O'Hear,  785 
Butler  v.  Seward,  152,  526 
Butte  v.  Riffe,  304,  333,  376,  445,672 
Butterfield  v.  Heath,  715,  734 
Butterworth  v.  Volkenning,  352 
Buttron  v.  Tibbitts,   142 
Butts  v.  Andrews,  722,  767 
Byers  v.  Aiken,  200,  207 
Bynes  v.  Rich,  263,  271,  272 
Bynum  v.  Govan,  128 


C. 


Cabell  v.  Grubbs,  63 

Cabler  v.  Jenkins,  76'Z 

Cadiz  v.  Majors,  545 

Cadmus  v.  Fagan,  292,  297 

Cadwalader  v.  Tryon,   150 

Cady  v.  Gale,  492 

Cain  v.  Guthrie,  695 

Cain  v.  Woodward,  129 

Cake  v.  Peet,  568 

Calcraft  v.  Roebuck,  185,  189,  822 

Calder  v.  Chapman,  531 

Calder  v.  Jenkins,   762,  778 

Caldwell  v.  Bower,  371 

Caldwell  v.   Kirkpatrick,  332,   356 

Calhoun  v.  Belden,  696,  729 

Calkins  v.  Williams,   507 

Calton  v.  Lewis,  864 

Calumet,  etc.,  Canal  Co.  v.  Russell,  70 

Calvert  v.  Ash,  95 

Calvert  v.  Sebright,  432 

Cambrelleng  v.  Purton,  746 

Cameron  v.  Logan,   123 

Camfield  v.  Gilbert,   12,   14,  220,  594, 

710,  717,  719,  726 
Camp   v.    Morse,   208,    595,    610,   613, 

807 

Camp  v.  Pulver,  681 
Campbell  v.   Brown,    113,   115 
Campbell  v.  Carter,   866 
Campbell  v.  Fleming,  187,   194 
Campbell  v.  Johnson,   560 
Campbell  v.  McCahan,   80 
Campbell  v.  McClure,  597 
Campbell  v.  Lowe,    121,    137 
Campbell  v.  Medbury,  448 
Campbell  v.  Shields,   353 
Campbell  v.  Shrum,   38,   600 
Campbell  v.  Whittingliarn,    236,    245, 

246,  251 

Candler  v.  Lunsford,  543 
Canedy  v.  Marcy,  561,  563,  569 
Canton  Co.  v.  B.  &  O.  R.  Co.,  191,  19i 
Cantrell  v.  Mobb,  594,  627,  851 
Capehart  v.  Dowery,  78,  90 
Capital  Bank  v.  Huntoon,  130,  131 
Capstick  v.  Crane,  494 
Carbrey  v.  Willis,   302 
Carey  v.  Daniels,  302 
Carey  v.  Guillow,  457 
Carey  v.  Gundlefinger,    597 
Carlisle  v.  Carlisle,   68 
Carnahan  v.  Hall,  666 
Carne  v.  Mitchell,  517 
Carneal  v.  Lynch,  79 
Carnes  v.  Swift,  519 
Carney  v.  Newberry,  578,  613 
Carpenter  v.  Bailey,  35 
Carpenter  v.  Brown,  164,  208,  797 
Carpenter  v.  Hoi  comb,   19 
Carpenter  v.  Lockhart,    203,    231 


TABLE    OF    CASKS. 


XXIX 


[UEFKHESCES   AUK   TO   PAGES.] 


Carpenter  v.  Schemerhorn,    542 

Carpenter  v.  Stihvell,    130 

Carpenter  v.  Strother,   83 

Carpenter  v.  Thompson,  525 

(  arper  v.  Munger,  576 

Curr  v.  Callaglian,  238 

Carr  v.  Dooley,  292,  294 

Carr  v.  Roach,  164,  661 

Carrico  v.  Froman,  608 

Carrodus  v.  Sharp,  819 

Carroll  v.  Carroll,  389 

Carroll  v.  McKahary,  708 

Carson  v.  Carson,  525 

Carson  v.  Kelly,   473 

Carson  v.  Mulvany,  496 

Carter  v.  Beck,  15,  468 

Carter  v.  Carter,  476 

Carter  v.  Chandron,   71 

Carter  v.  Denman,  263,  300,  377 

Carter  v.  Morris,  755 

Carter  v.  Morris  B.  &  L.  Asso.,  733 

Cartwright  v.  Briggs,  444,  844 

Cartwright  v.  Culver,  633 

Carver  v.  Howard,  137 

Carver  v.  Jackson,  541 

Carver  v.  La  Salette,  573 

Carvill  v.  Jacks,  234,  395 

Gary  v.  Gundlefinger,  597 

Case  v.  Boughton,   682 

Case  v,  Wolcott,  212 

Casey  v.  Lucas,  445,  638 

Cashon  v.  Faina,  77 

Cassada  v.  Stabel,  353 

Cass  Co.  v.  Oldham,  575 

Cassell  v.  Cooke,  768,  783,  803 

Cassidy's  Succession,  397 

Castleberg  v.  Maynard,  771 

Caswell  v.  Black  River  Mfg.  Co.,  189, 

191,  194 

Caswell  v.  Wendell,  272 
Cater  v.  Pembroke,  244 
Cates  v.  Field,  422,  430 
Cathcart  v.  Bowman,  291,  298,  308 
Cathcart  v.  Sugenheimer,  138 
Catlin  v.  Hurlburt,  255,  266,  272 
Cattell  v.  Corrall,  21,  711,  715 
Caulkins  v.  Harris,  414,  415 
Causton  v.  Macklew,  715,  737 
Cavanaugh  v.  Casselman,  452 
Cavanaugh  v.  McLaughlin,  778 
Ceconni  v.  Rodden,  361 
Ceconni  v.  Rhodes,  398 
Cent.  App.  Co.  v.  Buchanan,  349 
Chabot  v.  Winter  Park  Res.  Co.,  487 
Chace  v.  Gregg,  524 
Chace  v.  Hinman.  282 
Chamberlain  v.  Amter,  596 
Chamberlain  v.  Lee,   802,   807 
Chamberlain  v.  McClung,  523 
Chamberlain  v.  Meeder,  525,  543 
Chamberlain  v.  Preble,  425,  426 


Chambers  v.  Cochran,  123,  125 
Chambers  v.  Cox,  445 
Chambers  v.  Jones,    139 
Chambers  v.  Pleak,  371 
Chambers  v.  Smith,  269,  366 
Chambers  v.  Tulane,  693,  769,  774 
Champion  v.  Brown,  481 
Champlin  v.  Dotson,  506,  843,  844 
Champlin  v.  Layton,   247,   870,   871 
Champlin  v.  Williams,  512 
Chandler  v.  Brown,  362,  366 
Chandler  v.  Spear,  61 
Chapel  v.  Bull,  320 
Chaplain  v.  Southgate,  353 
Chaplin  v.  Briscoe,  449 
Chapman  v.  Brooklyn,    122 
Chapman  v.  Eddy,  609 
Chapman  v.  Holmes,  263,  330,  431 
Chapman  v.  Kimball,  263,  290 
Chapman  v.  Lee,    163,    165,  207,   728. 

741 

Charles  v.  Dana,  589 
Charleston  v.  Blohme,  78,  84,  87,  786 
Charman  v.  Tatum,  325 
Chartier  v.  Marshall,  230,  480 
Chase  v.  Chase,  760 
Chase  v.  Palmer,  44 
Chase  v.  Peck,  626 
Chase  v.  Weston,  380  * 
Chastain  v.  Staley,  151 
Chatfield  v.  Williams,  611 
Chauncey  v.  Leominster,  773 
Chauvin  v.  Wagner,  65,  265,  270,  440, 

521,  540 

Cheesman  v.  Thome,  737,  822 
Cheever  v.  Minton,  90 
Chenault  v.  Thomas,   357,   424,   434 
Cheney  v.  Straube,  357,  368,  392,433 
Cherry  v.  Davis,  615,  618,  741 
Chesman  v.  Cummings,  722 
Chester  v.  Rumsey,  70 
Chew  v.  Tome,  746,  773 
Chesterfield  v.  Jansen,  187 
Chicago  v.  Rollins,  428 
Chicago,    Kans.    &    Neb.    R.    Co.    v. 

Cook,  116 

Childs  v.  Alexander,  476,  477 
Childs  v.  Lockett,   616 
Childs  v.  McChesney,   542 
Chinn  v.  Healc,  488,  492 
Chitwood  v.  Russell,  339 
Chopin  v.  Pol  let,   773 
Chouteau  v.  Allen.  63 
Chrisman  v.  Partee,  807,  808 
Christian  v.  Cabell,  36,  189,  805,  807 
Christian  v.  Stanley,  826 
Christman  v.  Colbert,  559,  576 
Christy   v.   Ogle,   256,   259,   299,   324, 

419 

Christy  v.  Reynolds,  673 
Church  v.  Brown,   147 


XXX 


TABLE   OF   CASES. 
[REFERENCES  ARE  TO  PAGES.] 


Church  v.  Shanklin,  726 

Churchill  v.  Moore,  67 

Citizens'  Bank  v.  Freitag,  122,  124 

Clagett  v.  Crall,  240 

Clanton  v.  Burges,  447,  645 

Clapp  v.  Herdmann,  256,  270,  405 

Clare  v.  Lamb,  652 

Clare  v.  Maynard,  212 

Clark  v.  Baird,   14,  235 

Clark  v.  Baker,  525,  541,  549 

Clark  v.  Briggs,  695,  696 

Clark  v,  Clark,  510 

Clark  v.  Cleghorn,  839 

Clark  v.  Conroe,  258,  3GO,  375,   378 

Clark  v.  Croft,  589 

Clark  v.  Drake,  572 

Clark  v.  Fisher,   28,   290,   299,   407 

Clark  v.  Hardgrove,  461,  493,  849 

Clark  v.  Harper,  360 

Clark  v.  Hutzler,  764 

Clark  v.  Jacobs,  626 

Clark  v,  Johnson,   380 

Clark  v.  Lambert,   519 

Clark  v.  Lockwood,   127 

Clark  v.  Lyons,  148 

Clark  v.  Mumford,  430,  474 

Clark  v.  Parr,  392 

Clark  v.  Perry,  315 

Clark  v.  Post, '134,  658 

Clark  v.  Redman,  34,  47, 145, 148,  777 

Clark  v.  Seirer,  497 

Clark  v.  Snelling,   444 

Clark  v.  Swift,  268 

Clark  v.  Weiss,  202,  604,  804 

Clark  v.  Whitehead,     156,    366,     399, 

444 

Clark  v.  Zeigler,  298 
Clarke  v.  Cleghorn,  839 
Clarke  v.  Elliott,  486 
Clarke  v.  Locke,    15,    209,    215,    618, 

695 

Clarke  v.  McAnulty,   356,   364,   402 
Clarke  v.  Priest,  311,  440 
Clarke  v.  Scudder,  270 
Clarke  v.  Wilson,  133 
Clarkson  v.  Skidmore,  407 
Clason  v.  Bailey,  44 
Claxton  v.  Gilben,  386 
Claycomb  v.  Munger,  363,  370,  424 
Claypoole  v.  Houston,  559 
Clee  v.  Seaman,  552 
Clegg  v.  Lemessurier,  55 
Clemens  v.  Loggins,  74,  200,  201,  615, 

792 

Clement  v.  Bank,  258,  340,  382 
Clement  v.  Burtis,  777 
Clement  v.  Collins,  365,  424,  432 
Cleveland  v.  Bergen  B,  &  L.  Co.,  826 
Cleveland  v.  Flagg,  527 
Cleveland  Park  Co.  v.  Campbell,  288, 

293 


Click  v.  Green,  214,  347,  391 

Clinch  River  Co.  v.  Kurth,  58,  66 

Cline  v.  Catron,  91 

Clinton  v.  Shugart,  597 

Clive  v.  Beaumont,  22 

Clopton  v.  Bolton,  611 

Clore  v.  Graham,  291 

Close  v.  Stuyvesant,  716 

Close  v.  Zelf,    657,   659,   673 

Clouse's  Appeal,  767,  770 

Clowes  v.  Higginson,  32 

Clute  v.  Robinson,  35 

Coal  Creek  Mining  Co.  v.  Ross,  545 

Cobb  v.  Hatfield,  14 

Coble  v.  Wellborn,  373 

Coburn  v.  Haley,  624,  731 

Coburn  v.  Litchfield,  297,  318 

Cochran  v.  Guild,   292,   293,   297 

Cochran  v.  Pascault,   438,   439,   538 

Cocke  v.  Taylor,  215 

Cockey  v.  Cole,  90,  93 

Cockrell  v.  Bane,  343 

Cockrell  v.  Proctor,  273,  275 

Cockroft  v.  Railroad  Co.,  213,  220 

Codman  v.  Jenkins,  464 

Codrington  v.  Denham,  353 

Coe  v.  Harahan,   153 

Coe  v.  N.  J.  Mid.  R.  Co.,  557,  563 

Coe  v.  Persons  Unknown,  548 

Coffee  v.  Newson,  623,  680,  823,  829 

Coffin  v.  Cook,  116 

Coffman  v.  Huck,  414 

Coffman  v.  Scoville,  845 

Cogan  v.  Cook,  35 

Cogel  v.  Raph,  170,  180,  182 

Cogswell  v.  Boehm,  187,  824 

Cogwell  v.  Lyons,  222 

Cohen  v.  Woolard,  458,  639 

Coit  v.  McReynolds,  258.  260,  261 

Colbert  v.  Moore,  109,  111 

Colby  v.  Osgood,  350,  440 

Colcord  v.  Leddy,  808 

Colcord  v.  Swan,  542 

Cole  v.  Gibbons,  187 

Cole  v.  Hawes,  339 

Cole  v.  Hughes,   303 

Cole  v.  Johnson,   138 

Cole  v.  Justice,  443,  455,  510 

Cole  v.  Kimball,   265,   311,   318 

Cole  v.  Lee,   332,   372 

Cole  v.  Raymond,  540 

Coleman  v.  Bank,    191,  603,  798 

Coleman  v.  Clark,  422 

Coleman  v.  Coleman,  558 

Coleman  v.  Floyd,   62o 

Coleman  v.  Hart,  657 

Coleman  v.  Insurance  Co.,  470 

Coleman  v.  Lyman,   265 

Coleman  v.  Rowe,  446,  603,  611 

Coleman  v.  Sanderlin,   605 


TABLE   OF    CASES. 

[REFEBEXCES  ABE  TO  PAGES.] 


XXXi 


Collier  v.  Cowger,  321,  359,  372,  414. 

426 

Collier  v.  Gamble,  265,  208,  273,  642 
Collingwood  v.   Irwin,   285,   403,  429, 

430 

Collins  v.  Baker,  428 
Collins  v.  Clayton,  848 
Collins  v.  Delashmutt,  35 
Collins  v.  Miller,  128 
Collins  v.  Smith,  492,  716 
Collins  v.  Thayer,  596,  619 
Collis  v.  Cogbill,  364,  427 
Colton  v.  Seavy,  62 
Colton  v.  Wilson,  189,  715 
Colver  v.  Clay,  495,  502 
Colvin  v.  Schell,  420,  661 
Colwell  v.  Hamilton,  35,  589 
Colyer  v.  Thompson,  194,  695,  858 
Combs  v.  Scott,  214,  218 
Combs  v.  Tarlton,  213,  222 
Comegys  v.  Davidson,  468 
Comer  v.  Walker,  820 
Comings  v.  Little,  298,  316,  318,  347 
Commercial  Bank  v.  Martin,  93 
Common  School  D.  v.  Conrad,  445 
Commonwealth  v.  Andre,    158,   543 
Commonwealth  v.  Dickinson,    126 
Commonwealth  v.  McClanachan,  650 
Commonwealth  v.  Pejepscut,   158,  543 
Compton  v.  Nuttle,  481 
Comstock  v.  Ames,  236 
Comstock  v.  Crawford,  116 
Comstock  v.  Smith,  526,  544,  546 
Comstock  v.  Son,   336,   861 
Conaway  v.  Gore,  557,  571 
Concord  Bank  v.  Gregg,  152,  236,  619, 

683 

Condit  v.  Bigelow,  522 
Conger  v.  Weaver,  213 
Conger  v.  Mericles,   571 
Congregation  v.  Miles,  616,  667,  695 
Conklin  v.  Hancock,  411 
Conley  v.  Doyle,  15 
Conley  v.  Dibber,  788 
Conley  v.  Finn,  738 
Connell  v.  McLean,  213,  216,  217 
Connelly  v.  Peirce,   164,  208 
Connelly  v.  Phila,  129 
Connor  v.  Eddy,  446,  526 
Connor  v.  Huggins,  739 
Connor  v.  McMurray,  528 
Connor  v.  Wells,  558 
Conrad  v.  Trustees,  392,  394 
Contee  v.  Lyons,  95,  96,  172,  769 
Converse  v.   Blumrich,  579 
Conway  v.  Case,  34 
Conwell  v.  Clifford,  249 
Coogan  v.  Ockershausen,  771 
Cook  v.  Bean,  793 
Cook  v.  Curtis,  402,  430 
Cook  v.  Fuson,  326 


Cook  v.  Jackson,  472 

Cook  v.  Mix,  462,  403 

Cooke  v.  Husband,  571 

Cooley  v.  Rankin,  440,  038,  645 

Coombs  v.  Lane,  111 

Coombs  v.  O'Neal,  773 

Coons  v.  North,    134 

Cooper  v.  Bloodgood,   354,   447 

Cooper  v.  Burns,  542 

Cooper  v.  Denne,  731,  816,  817 

Cooper  v.  Emery,   161 

Cooper  v.  Cranberry,  380 

Cooper,  In  re,  429 

Cooper  v.  Phibbs,  863,  874 

Cooper  v.  Reynolds,    94,    95 

Cooper  v.  Singleton,  472,  601,  723 

Cooper  v.  Sunderland,   103 

Cooper  v.  Watson,  426 

Cope  v.  Williams,  615,  629 

Copeland  v.  Copeland,  i87 

Copeland  v.  Laun,  613 

Copper  v.  Wells,  489 

Coray  v.  Matthewson,  190,  724 

Corbally  v.  Hughes,  506 

Corbett  v.  Dawkins,  109,  648 

Corbett  v.  McGregor,  855 

Corbett  v.  Norcross,  55 

Corbett  v.  Nutt,  769 

Corbett  v.  Shulte,   191 

Corcoran  v.  White,  485,  502 

Core  v.  Strickler,  79 

Core  v.  Wigner,  737,  817 

Corn  v.  Bass,  303,  779 

Cornell  v.  Andrews,  704,  722,  767 

Cornell  v.  Jackson,  264,  339,  410,537 

Cornish  v.  (iapron,  339 

Cornwall  v.  Williams,  480 

Cornwell  v.  Clifford,  444 

Corrall  v.  Cattell,  817 

Corson  v.  Mulvany,  496 

Corus'  Case,  352 

Corwin  v.  Benham,  77,  118 

Corwith  v.  Griffingr  97 

Coster  v.  Monroe  Mfg.  Co.,  153,  331, 

837,  838 

Costigan  v.  Hastier,  481 
Costigan  v.  Hawkins,  860 
Cotes  v.  Raleigh,  828 
Cotton  v.  Ward,  537,  766,  811 
Cottrell  v.  Cottrell,  154 
Cottrell  v.  Watkins,  737 
Coudert  v.  Say  re,  301 
Coughenour   v.    Swift,   667 
Coulson  v.  Wing,  116 
Courtright  v.  Courtright,  563 
Covell  v.  Cole,  492 
Coverly  v.  Burrell,  30 
Coves  v.  Hallahan,  777 
Cowan  v.  Kane,  300,  492,  497,  778 
Cowdrey  v.  Coit,  371 
Cowdrey  v.  Cuthbert,  506 


XXX11 


TABLE   OF    CA 


[EEFEKZNCES   ABE  TO  PAGES.] 


Cowen  v.  Withrow,  130 

Cowley  r.  Watts,  21 

Cox  v.  Coven  ton,  774 

Cox  v.  Cox,  91,  737,  752 

Cox  v.  Davis,  88 

Cox  v.  Henry,  214,  230,  391,  404,  414, 

415,  421*  451,  660,  673 
Cox  v.  Johnson,  506 
Cox  v.  Middleton,  21 
Cox  v.  Strode,   213,  271,  395,  430 
Coyne  v.  Souther,  119 
Crabtree  v.  Levings,  47,  154 
Craddock  v.  Shirley,  189,  195,  800 
Craft  v.  La  Tourette,  625 
Craft  v.  Merrill,  130 
Craig  v.  Donovan,  269 
Craig  v.  Heis,  292,  447 
Craig  v.  Lewis,   302,  552 
Craig  v.  Martin,  804 
Cramer  v.  Benton,  544 
Cramer  v,  Mooney,   796 
Crane  v.  Collenbaugh,  368 
Craven  v.  Clay,  370 
Crawford  v.  Kebler,     243,     590,    690 

784 

Crawford  v.  Murphy,  645,  668 
Crawford  v.  Pendleton,  360 
Crawley  v.  Timberlake,  724 
Crayton  v.  Munger,  112 
Creigh  v.  Boggs,  822 
Creighton  v.  Pringle,  568 
Crenshaw  v.  Smith.  410 
Creps  v.  Baird,  118 
Crippen  v.  Bauinrs.  570 
Cripps  v.  Read,  152,  648 
Crisfield  v.  Storr,  336,  357,  377,  401, 

417,  422,  434 

Critchett  v.  Cooper,  35,  205 
Critchfield  v.  Kline,  559 
Crittenden  v.  Craig,  235 
Crittenden  v.  Posey,  215,  415 
Crockett  v.  Crocke'tt,  576 
Croft  v.  Thornton,  519 
Cronister  v.  Cronister,  673 
Cronk  v.  Trumble,  200 
Crocker  v.  Jewell,  380,  381 
Crop  v.  Norton,  480 
Crosby  v.  Thedford,  754 
("rosier  v.  Acer,  865 
Cross  v.  Devine,  224 
( 'ross  v.  Freeman,  39 
Cross  v.  Martin,  538 
doss  v.  Noble,  298,  652,  666,  667 
Cross  v.  Robinson,  385,  525 
Cross  v.  Zane,   140 
Crosse  v.  Young,  352 
Crotzer  v.  Russell,  675 
('router  v.  Crouter,  753 
Crowder,  Ex  parte.  153 
Crowe  v.  Ballard.  188 
Crowley  v.  Lumber  Co.,  300 


Crowell  v.  Packard,  649 

Croxall  v.  Sherrard,  737 

Cram  v.  Cotting,  382 

Cram  v.  Loud,  561 

Crutcher  v.  Stump,  356 

Crutchfield  v.  Danilly.  238,  244 

Crutchfield  v.  Hewett,  761 

Culbertson  v.   Blanc-hard,  624,  856 

Culler  v.  Motzer,  668 

Cullum    v.    Br.    Bank,   242,    244,   443, 

685,  843 

Culver  v.  Avery,  13,  661,  687 
Cumming's  Appeal,   121,   126 
Cummings  v.  Freer,  576 
Cummings  v.  Harrison,  429 
Cummings  v.  .Holt,   351 
Cummins  v.  Boyle,  453,  704,  839 
Cummins  v.   Kennedy,  361,   381,  391, 

395 

Cunningham  v.  Anderson,   115 
Cunningham  v.  Blake,   767 
Cunningham  v.  Buck,   129 
Cunningham  v.  Depew,  481,  489 
Cunningham  v.  Fithian,  194 
Cunningham  v.  Gwinn,  589 
Cunningham  v.  Knight,   377 
Cunningham  v.  Sharp,    35,    732,    741, 

767,  827 

Curd  v.  Davis,  458 
Curling  v.  Flight,  819 
Curling  v.  Shuttleworth,  708 
Curran  v.  Banks,  506 
Currie  v.  Cowles,  488 
Currie  v.  Xind,  734 
Curtis  v.  Deering,  360,  433 
Curtis  v.  Gooding,  138 
Curtis  v.  Hawley,  390,  727 
Cushing  v.  Spalding,  768 
Cushman  v.  Blanchard,  419 
Cuthbertson  v.   Irving,  387 
Cutter  v.  Waadingham,  552 
Cutts  v.  Thodey,  187 
Cypress  Lumber  Co.  v.  Tiller,  494 


Daggett  v.  Reas,  272,  356 

Dahl  v.  Pross,  505 

Dahle  v.  Stakke,  289,  318,  463.  469 

Daisy  Realty  Co.  v.  Brown,  306 

Dail  v.  Moore,  58,  61 

Daily  v.  Litchfield,  704 

Dalby  v.  Pullen,  805 

Dale  v.   Shively,  256,  272,   404,  420, 

421 

Dale  v.  Sollett,  596 
Dallmyer  v.  Ferguson,  738 
Dalton  v.  Bowker,  392?  428,  430 
Dalton  v.  Taliaferro,  146,  281 
Daly  v.  Bernstein.  600,  601 
Dalzell  v.  Crawford,  710,  752 


TABLE   OF    CASES. 

[REFERENCES  ABB  TO  PAGES.] 


Damra  v.  Moors,  571 

Dana  v.   Goodfellow,  282 

Dane  v.  Derber,  559,  506 

Danforth  v.  Smith,  274,  397 

Daniel  v.  Baxter,  591 

Daniel  v.  Hollingshed,   180 

Daniel  v.  Leitch,  78,  80,  92 

Daniel  v.  Smythe,  782 

Daniell  v.  Shaw,  710,  778 

Daniels  v.  Newton,  19 

Danly  v.  Rector,  118 

Darlington  v.  Hamilton,  29,  777 

Darrow  v.  Cornell,  733 

Darrow  v,  Horton,  805 

Dart  v.  Barbour,  573 

Dart  v.  Dart,  545 

Dart  v.  McQuilty,  494 

Darvin  v.  Hillfield,  82 

Daughtry  v.  Knolle,  337,  866 

Davar  v.  Caldwell,  764 

Davenport  v.  Bartlett,  363,   364,  370, 

374 

Davenport  v.  Latimer,  195,  481 
Davenport  v.  Scovil,  571 
Davenport  v.  Whisler,  676 
Davidson  v.  Cox,  263,  386 
Davidson  v.  Keep,  580 
Davidson  v.  Moss,  236,  855 
Davidson  v.  Van  Pelt,  36 
Davies  v.  Hughes,  109 
Davis  v.  Agnew,  524 
Davis  v.  Bean,  469 
Davis  v.  Beasley,  58 
Davis  v.  Evans,  194 
Davis  v.  Gaines,   137 
Davis  v.  Heard,  251,  252,  691,  858 
Davis  v.  Henderson,  36,   148 
Davis  v.  Hunt,  121 
Davis  v.  Lewis,  226 
Davis  v.  Logan,  359,  841 
Davis  v.  Lyman,   256,   259,   263,   31  i, 

338 

Davis  v.  Murray,  126,  477 
Davis  v.  Parker,  496 
Davis  v.  Rogers,  573,  575 
Davis  v.  Shields,  44 
Davis  v.  Smith,  351,  365,  392,  427 
Davis  v.  Symonds,  581 
Davis  v.  Tollemache,  439,  515 
Davis  v.  Watson,  616,  827 
Davis  v.  Wilbourne,  424,  430 
Davison  v.  De  Freest,  460 
Davison  v.  Perrine,  696 
Dawes  v.  Betts,  30 
Dawson  v.  Shirley,  145 
Day  v.  Browne,   155. 
Day  v.  Burnham,   149 
Day  v.  Chism,  361,  433 
Day  v.  Kingsland,  743,  746,  761 
Day  v.  Nason,  220 
Dayton  v.  Citizens'  Nat.  Bank,  575 


Dayton  v.  Dusenberry,  843,  845 

Dayton  v.  Melick,  460 

Deacon  v.  Doyle,  307 

Deal  v.  Dodge,  444,  461,  635,  644,  695 

Dean  v.  Morris,  123 

Dearth  v.  Williamson,  35 

De  Chaumont  v.  Forsyth,  381 

Deck's  Appeal,  298 

Decker  v.  Schulze,  241,  854 

De  Courcey  v.  Barr,  59 

Deery  v.  Cray,  65 

De  Forest  v.  Leete,  322,  320 

De  Haven's  Appeal,  77 

Deichman  v.  Deichman,  205 

Lie  Jarnatt  v.  Cooper,  506,  574 

De  Kay  v.  Bliss,  400 

Delafield  v.  James,  726 

Delavan  v.  Duncan,  203 

Delavergne  v.  Norris,  315,  317,  469 

De  Long  v.  Spring  Lake  Co.,  304,  415 

Demarest  v.  Friedman,  746 

Demarest  v.  Hopper,  545 

Demarett  v.  Bennett,  472,  474,  847 

Demars  v.  Koehler,  299 

Demmy's  Appeal,   116 

Den  v.  Demarest,  542 

Den  v.  Geiger,  67,  259 

Den  v.  Hamilton,  71 

Den  v.  Young,  121 

Denn  v.  Cornell,  541 

Denne  v.  Light,  21 

Denning  v.  Cresson,  253 

Dennis  v.  Heath,  365,  371,  446,  464 

Dennis  v.  Strasburger,  200,  792,  794, 

795 

Dennison  v.  Ely,  53 
Denny  v.  Wicklifl'e,  693,  723,  842 
Denson  v.  Love,  370,  466 
Denston  v.  Morris,  252,  846 
Dentler  v.  Brown,  510,  512,  668 
Dentler  v.  O'Brien,  809 
DePeyster  v.  Murphy,  290,   292,  293, 

295 

Derr  v.  Wilson,  92 
De  Saussuer  v.  Bollman,  761 
Des  Moines,  etc.,  R.  E.  Co.  v.  Beale, 

164 

Desverges  v.  Willis,  305,  836 
Detroit  R.  Co.  v,  Griggs,  843 
Deverell  v.  Bolton,  134,  187,  188 
Devin  v.  Hendershott,  385 
Devin  v.  Himer,  219 
Devine  v.  Lewis,  402 
Devine  v.  Rawle,  292 
Devling  v.  Little,  39 
Devore  v.  Sunderland,  265,  209 
Devour  v.  Johnson,  430 
Dewey  v.  Campau,  64,  65 
DeWolf  v.  Hayden,  540 
DeWolf  v.  Mallet,  123 
Dexter  v.  Manly,  343,  433,  435,  437 


XXXIV 


TABLE   OF    CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Dial  v.  Grain,  581 
Dickinson  v.  Colgrove,  737 
Dickerson  v.  Davis,  70 
Dickins  v.  Shepherd,  391,  410 
Dickinson  v.  Dickinson,  773 
Dickinson  v.  Glenney,   555,   575,   576 
Dickinson   v.   Hoomes,    146,    148,    151, 

311,  339,  379,  387 
Dickinson  v.  Talbot,  519,  539 
Dickinson  v.  Voorhees,  337,  667 
Dickson  v.  Desire,  265,  269,  401 
Diggle  v.  Boulden,  796 
Diggs  v.  Kirby,  233,  OoO,  684 
Dikeman  v.  Arnold,  778 
Dill  v.  Noble,  727 
Dill  v.  Wareham,  654 
^illahunty  v.  R.  Co.,  368,  405,  406 
Dillingham  v.  Estill,  452 
Dimmick  v.  Lockwood,   321,   322,  397 
Disbrow  v.  Folger,  772,  758 
Disbrow  v.  Harris,  452 
Dix  v.  School  District,  448 
Dixon  v.  Astley,  189 
Dixon  v.  Rice,  498 
Dixon  v.  Robbins,  62 
Doan  v.  Mauzy,  487 
Doane  v.  Willcutt,  439,  542,  546 
Dobbins  v.  Brown,  334,  354,  355,  356 
Dobbs  v.  Norcross,  732 
Doctor  v.  Hellberg,  494 
Dod  v.  Paul,  557 
Dodd  v.  Nelson,   128 
Dodd  v.  Seymour,  34,  150,  155 
Dodd  v.  Templeman,  106 
Dodd  v.  Toner,  467 
Dodd  v.  Williams,  531 
Dodson  v.  Cooper,  512 
Doe  v.  Anderson,   100 
Doe  v.  Dowdall,   534 
Doe  v.  Oliver,   531,   532 
Doe  v.  Quinlan,  519 
Doe  v.  Smith,   130 
Doe  v.  Stanion,  20,  28 
Doebler's  Appeal,  V21,  766 
Doggett  v.  Emerson,  699 
Doherty  v.  Dolan,  12,  214 
Doll  v.  Pizer,  758 

Dom.  Bldg.  Asso.  v.  Guardiano,  167 
Dominick  v.  Michael,  542,  817 
Donaldson  v.   Waters,   615 
Donlon  v.  Evans,  20,  392 
Donnell  v.  Thompson,  274,  300,  324, 

334,  404 

Donner  v.  Redenbaugh,  229 
Donohoe  v.  Emery,  156,  347 
Donovan  v.  Frisker,  695 
Donovan  v.  Twisl,  525 
Doody  v.  Hollwedel,  765 
Doom  v.  Curran,  392,  422 
Doremus  v.  Bond,  456 
Dorincturt  v.  La  Croix,  214 


Dorr  v.  Steichen,  572 

Dorsey  v.  Dashiell,   282 

Dorsey  v.  Gassaway,  544 

Dorsey  v.  Hobbs,  589 

Dorsey  v.  JacKman,  668,  672 

Dorsey  v.  Kendall,   100 

Doswell  v.  Buchanan,  532,  533 

Dotson  v.  Bailey,  580,  700 

Dougald  v.  Dougherty,  520 

Dougherty  v.  Duval,  379,  401 

Doughty  v.  Cottraux,  472 

Douglas  v.  Lewis,  342 

Douglas  v.  Scott,  529 

Doupe  v.  Genin,  353 

Dow  v.  Lewis,  154,  157 

Dowdney  v.  Mayor,  296 

Dowdy  v.  McArthur,  172 

Downer  v.  Fox,  512 

Downer  v.  Smith,  256,  258,   318,   41) 

Downey  v.  Seib,  721 

Dowson  v.  Solomon,   188,   191,  821 

Doyle  v.  Brundred,   391 

Doyle  v.  Hord,  337,  357,  865 

Drake  v.    Baker,   213,   21(i,   217,   228, 

391 

Drake  v.  Barton,  20,  145 
Drake  v.  Cockroft,  353 
Drake  v.  Collins,  503 
Drake  v.  Shiels,  22 
Drennere  v,  Boyer,  19i),  611 
Dresbach  v.  Stein,  76,  78 
Dresel  v.  Jordan,  73,  765,  792,  807 
Drew  v.  Clark,  871,  875 
Drew  v.  Corporation,  785 
Drew  v.  Pedlar,  204 
Drew  v.  Smith,  405 
Drew  v.  Towle,  363,  391,  446,  467 
Driggin  v.  Cassaday,  98,  100 
Driggs  v.  Dwight,  211 
Drinker  v.  Byers,  660,  670,  673 
Driver  v.  Spence,  12  / 
Droge  v.  Cree,  720,  769 
Drury's  Case,  127 
Drury  v.  Connor,    492 
Drury  v.  Imp.  Co.,  286 
Drury  v.  Shumway,   365,   398 
Drysdale  v.  Mace,  28 
Dubay  v.  Kelly,  410,  418 
Dubois  v.  James,   798 
Dutchess  of  Kingston's  Case,  525 
Dudley  v.  Bryan,  605 
Dudley  v.  Cadwell,  529 
Dudley  v.  Folliott,  351 
Duff  v.  Wilson,  366 
Duffield  v.  Wilson,  587 
Duffield  v.  Scott,  418,  426 
Duffy  v.   Sharp,  292 
Dufief  v.  Boykin,  37,  589 
Dufour  v.  Cambranc,   136 
Duke-  v.  Barnett,  28,  29 
Duluth  Land  Co.  v.  Klovdahl,  794 


TABLE   OF    CASES. 

[REFERENCES  ARE  TO  PAGES.] 


xxxv 


Dumars  v.  Miller,  213,  217 

Dunghee  v.  Geoghegan,  215 

Dunbar  v.  Tredennick,    188 

Duncan  v.  Blair,  284 

Duncan  v.  Cafe,  188,  190 

Duncan  v.  Charles,   206 

Duncan  v.  Gainey,  138,   140 

Duncan  v.  Jeter,  694,  696 

Duncan  v.  Lane,  446 

Duncanson  v.  Manson,  99 

Duncan  v.  McCullough,   523    • 

Duncan  v.  Tanner,  231 

Dundas  v.  Hitchcock,  67 

Dundy  v.  Chambers,  59 

Dunfee  v.  Childs,  90 

Dunham  v.  New  Britain,  568 

Dunkleberger  v.  Whitehill,  372 

Dunklee  v.  Wilton  R.  Co.,  309 

Dunlap  v.  Dougherty,  57 

Dunlap  v.  Hepburn,  692 

Dunn  v.  Frazier,   122,   140 

Dunn  v.  Huether,  778 

Dunn  v.  Mills,  188,  191,  615 

Dunn  v.  White,  291,  443,  455 

Dunnica  v.  Sharp,  213,  222,  392 

Dunning  v.  Leavitt,  447,  461 

Dupre  v.  Thompson,  561,  575 

Depuy  v.  Roebuck,  363 

Durand  v.  Williams,  263 

Durham  v.  Hadley,  20,  788,  797 

Duroe  v.  Evans,  283 

Durrett  v.  Piper,  300 

Dussaume  v.  Burnett,  58 

Dustin  v.  Newcomer,  212 

Dutch  v.  Warren,  596 

Dutch  Church  v.  Mott,  755.  798,  804 

D'Utricht  v.  Melchoir,  679,  864 

Dutton  v.  Gerish,  283 

Duval   v.    Craig,    156,   282,    326,    339, 

360 

Duval  1  v.  Parker,  709,  740,  743 
Dwight   v.    Cutler,    20,    35,    145,    148. 

150,  276,  594,  704,  749 
Dwight's  Case,  126 
Dwinel  v.  Veazie,  153 
Dworsky  v,  Arndstein,  746,  758 
Dye  v,  Montague,  207,  208 
Dye  v.  Thompson,  519 
Dyer  v.  Britton,  371 
Dyer  v.  Dorsey,  229,  231 
Dyer  v.  Ladomus,   292 
Dyer  v.  Wightman,  354 
Dyett  v.  Pendleton,  352 
Dyker,  M.  L.  &  I.  Co.  v.  Cook,  706, 

781 

E. 

Eads  v.  Murphy,  455,  615 

Eames  v.  Der  Germania  Turn  Verein. 

185,  697 
Eames  v.  Savage,   15 


Earl  v.  Campbell,  589,  732,  781 

Earle  v.  Bickford,  654 

Earle  v.  De  Witt,  649,  657,  676,  678 

Earle  v.  Middleton,  399,  416 

Early  v.  Douglas,  7o6 

Early  v.  Garrett,  238,'  685 

Easter  v.  Sever  in,  561,  563 

Easton  v.  Montgomery,  20,   163,   160, 

592,  794,  795,  800,  805 
East  Tenn.   Nat.  Bank  v.  First  Nat. 

Bank,  438,  515,  684 
Eaton  v.  Chesbrough,  294 
Eaton  v.  Eaton,  575 
Eaton  v.  Lyman,  265,  276,   315,  317, 

321,  427 

Eaton  v.  Tallmadge,  448 
Eberhardt  v.  Miller,  741 
Ebling  v.  Dwyer,  714,  722,  756 
Eby  v.  Eby,  34,  35 
Eby  v.  Elder,  671,  672 
Eccles  v.  Timmons,  86 
Edde  v.  Cowan,  141 
Eddleman  v.  Carpenter,  521 
Eddy  v.  Chace,  310 
Eden  v,  Blake,  32 
Edgerton  v.  Page,  353 
Edmison  v.  Zaborowski,  795 
Edmonds  v.  Cochran,  203 
Edington  v.  Nix,  318,  4*6,  639 
Edwards  v.  Bodine,  447,  459,   838 
Edwards  v.  Clark,  291,  298,  299 
Edwards  v.  Davenport,  525,  541 
Edwards  v.  McLeay,    233,    238,    239, 

680,  684 

Edwards  v.  Morris,  447,  738 
Edwards  v.  Roys,  259 
Edwards  v.  Strode,  607 
Edwards  v.  Van  Bibber,  192,  733 
Edwards  v.  Varick,  544 
Edwards  v.  Wickwar,  28 
Egan  v.  Yeaman,  315,  316,  844 
Eggers  v.  Busch,  706,  810 
Ela  v.  Card,  271,  409 
Elam  v.  Donald,  14 
Elder  v.  Chapman,  579,  793 
Elder  v.  First  Nat.  Bank,  460 
Elder  v.  McCloskey,  737 
Elder  v.  True,  398 
Elfenheim  v.  Von  Hafen,  14,  594 
Eller  v.  Moore,  301,  360 
Elkin  v.  Timlin,  661 
Elliot  v.  Boaz,  624,  625,  028,  696 
Elliot  v.  Fiersol,  72,  98 
Elliot  v.  Santtey,  424 
Elliott  v.  Blair,  806 
Elliott  v.  Osborn,   61 
Elliott  v.  Sackett,  567 
Elliott  v.  Thompson,  391,   404,  447 
Ellis  v.  Anderton,  31,  86,  595,  601 
Ellis  v.  Croselsy,  367,  406,  552,  675 
Ellis  v.  Ellis,  138 


XXXVI 


TABLE   OF   CASES. 


[REFEBENCES  ABE  TO  PAGES.] 


Ellis  v.  Hoskins,  612 

Ellis  v.  Lockett,  73,  726 

Ellis  v.  Welch,  351,  354,  355 

Else  v.  Kennedy,  575 

Ely  v.  Hergesell,  380,  386 

Emerson  v.  Hfles,  826 

Emerson  v.  Minot,  356 

Emerson  v.  Hoof,  802 

Emerson  v.  Samson,  520 

Emerson  v.  Wash.  Co.,  648 

Emery  v.  Grocock,  712,  714,  737 

Emery  v.  Pickering,  818 

Emmons  v.  Moore,  238 

Engel  v.  Fitch,  210,  21^,  214,  229 

England  v.  Clark,  112,  118,  122 

England  v.  Garner,  90,  97,  107 

Englander  v.  Rogers,  202,  795 

English  v.  Benedict,  235,  855 

English  v.  Thompson,  638,  848 

Ennis  v.  Leach,  153 

Ensign  v.  Colt,  301,  324,  362 

Erdman  v.  Corse,  737 

Erickson  v.  Bennett,  223,  224,  225 

Ernst  v.  Parsons,  268,  312 

Erwin  v.  Myers,  492,  702 

Espy  v.  Anderson,  150,  163,  276,  748, 

786,  787 
Estabrook    v.    Smith,    287,    298,    370, 

372,  402,  403 

Estell  v.  Cole,  481,  619,  723,  732 
Estep  v.  Estep,  444 
Estep  v.  Watkins,  778 
Evans  v.  Ashby,  98,  99 
Evans  v.  Bicknell,  236 
Evans  v.  Boiling,  795,  802,  865 
Evans  v.  Gerry,  710,  749,  800 
Evans  v.  Dendy,  86,  475 
Evans  v,  Jones,  669 
Evans  v.  Kingsberry,  492,  828 
Evans  v.  McLucas,  333,   475,  477 
Evans  v.  Saunders,  347 
Evans  v.  Snyder,   138 
Evans  v.  Taylor,  291,  725,  778,  780 
Eveleth  v.  Crouch,  389 
Everett  v.  Dilley,   295 
Everett  v.  Marston,  295 
Eversole  v.  Eversole,  827 
Everson  v.  Kirtland,  36 
Everts  v.  Brown,  338 
Ewart  v.  Bowman,  601 
Ewing  v.  Handley,  702 
Ewing  v.  Thompson,  214 
Eyre  v.  Woodfine,  127 
Eyston  v.  Symond,  798,  799 
Eyton  v.  Dicken,  712,  738 

F. 
Fagan  v.  Davidson,     161,     219,     726, 

731,   786 

Fagan  v.  McWhirter,  473 
Fahy  v.  Cavanagh,  728 


Faile  v.  Crawford,    765,   820 

Failing  v.  Osborne,  447,  600 

Fairbanks  v.  Williamson,  550 

Fairbrother  v.  Griffin,  382 

Fairchild  v.  Marshall,  714 

Faircloth  v.  Isler,  148,  153 

Faircloth  v.  Jordan,  531 

Fairfax  v.  Lewis,  207 

Falkner  v.  Eq.  Kev.  Society,  713 

Falkner  v.  Guild,  36 

Falkner  v.  Hackett,  460 

Fant  v.  Wright,  738 

Faries  v.  Smith,  432 

Farley  v.  Bryant,  540,  568,  569,  573 

Farley  v.  laler,  542 

Farley  v,  Howard,  302 

Farmers'  &  Mech.  Bank  v.  Detroit, 
569,  5/3 

Farmers'  Bank  v.  Galbraith,    667,673 

Farmers'  Bank  v.  Glenn,  404,  537 

Farmers'  Loan  &  Trust  Co.  v.  Malt- 
by,  532 

Farmers'  Bank  v.  Martin,  81 

Farmers'  Bank  v.  Peter,  81,  142 

Farnham  v.  Hotchkiss,  447,  458,  462 

Farnsworth  v.  Duffner,  664 

Farnum  v.  Buffum,  69 

Farnum  v.  Peterson,  527 

Farrell  v.  Lloyd,  240,  684 

Farrington  v.  Tennessee,  641 

Farrington  v.  Tourtellot,  305 

Farrow  v.  Mays,  475 

Fash  v.  Blake,  50 

Favill  v.  Roberts,  139 

Feemster  v.  May,  35,  611,  616 

Fehrle  v.  Turner,  445,  838 

Feiner  v.  Reiss,   771 

Felix  v.  Devlin,  492,  721 

Fellows  v.  Evans,  447 

Fenton  v.  Alsop,  854 

Fenwick  v.  Buff,  574 

Ferebee  v.  Hinton,  62 

Ferguson  v.  Dent,  344 

Ferguson  v.  Teel,  587 

Fermor's  Case,  105 

Ferrell  v.  Alden,  428 

Ferris  v.  Crawford,  286 

Ferris  v.  Harshea,  356,  365 

Ferris  v.  Plumber,  712 

Ferry  v.  Sampson,  746 

Person  v,  Sanger,  857 

Fewster  v.  Turner,  481 

Field  v.  Snell,  380,  389 

Fields  v.  Clayton,  559,  854 

Fields  v.  Hunter,  430 

Fields  v.  Baum,  587 

Fields  v.  Squires,   347,   379,  440,  547 

Fierce  v.  Houghton,  305,  308,  564 

Fife  v.  Clayton,  32 

Fillingin  v.  Thornton,  842 

Finch  v.  Edmondson,  115 


TABLE   OF   CASES. 

[REFERENCES   ARE  TO  PAGES.] 


xxxv ;  i 


Final  v.  Backus,  69 

Findlay  v.  Toncray,  147,  334,  356 

Findley  v.  Horner,  198 

Finley  v.  Steele,  342 

Finn  v.  Sleight,  552 

Finton  v.  Eggleston,  366 

First  Af.  Soc.  v.  Brown,  707 

First  Af.  M.  E.  Church  v.  Brown,  743 

Fi»st  Nat.  Bank  v.  Gough,   559,   560, 

573 
First  Nat.  Bank  v.  Wentworth,    569, 

575 

Fish  v.  Cleland,  250 
Fish  v.  West,  589 
Fishback  v.  Williams,  608,  797 
Fisher  v.  Abney,  474 
Fisher  v.  Dow,  472,  474 
Fisher  v.  Kay,  488 
Fisher  v.  Parry,  270 
Fisher  v.  Salmon,  467 
Fisher  v.  Wilcox,  721 
Fisher  v.  Wood,  106 
Fitch  v.  Baldwin,  261,  552,  855,  863 
Fitch  v.  Casey,  34 
Fitch  v.  Fitch,  540 
Fitch  v.  Polke,  241,  834,  837 
Fitch  v.  Seymour,  302 
Fitch  v.  Wollard,  25,  37,  149 
Fitts  v.  Hoitt,  300,  599,  778 
Fitzer  v.  Fitzer,  285 
Fitzgerald  v.  Peck,  871 
Fitzhugh  v.  Croghan,  255,  260,  538 
Fitzhugh  v.  Land  Co.,  698 
Fitzpatrick  v.  Featherstone,  695 
Fitzpatrick  v.  Fitzpatrick,  43 
Fitzpatrick  v.  Hoffman,  424,  677 
Fitzpatrick  v.  Leake,  773 
Fitzpatrick  v.  Sweeny,  762 
Flagg  v.  Eames,  54 
Flanary  v.  Kane,  54,  520. 
Flannagan  v.  Oberimer,  182 
Flannagan  v.  Young,  73 
Flannigan  v.  Fox,  727 
Flanniken  v.  Neal,  377 
Fleming  v.  Burnham,  721,  769 
Fleming  v.  Harrison,  148 
Fleming  v.  Holt,  133,  153 
Fletcher  v.  Beck,  641 
Fletcher  v.  Button,   17,  36,  211,  213, 

223,  617 

Fletcher  v.  Moore,  812 
Fletcher  v.  Wilson,  538,  798 
Flight  v.  Booth,  194 
Flinn  v.  Barber,  20,  590 
Flint  v.  Steadman,  415 
Flint  v.  Woodin,  193 
Floom  v.  Beard,  278 
Florence  Oil   Co.   v.  McCandless,  492, 

616,  626,  822 
Florentine  v.  Barton,  98 
Fluyder  v.  Cocker,  820 


Fly  v.  Brooks,  572 

Flureau  v.  Thornhill,  212,  215,  210 

Flynn  v.  Bourneuf,  283 

Flynn  v.  White  Breast  Coal  Co.,  308 

Fogarty  v.  Finlay,  63 

Foley  v.  City  of  Haverhill,  293 

Foley  v.  Crow,  822,  820 

Foley  v.  Keegan,  213 

FO!K  v.  Varn,  50 

Folliard    v.    Wallace,    351,    353,    431, 

434,  726,  727 
Follett  v.  Grant,  256 
Folts  v.  Huntley,  355 
Foot  v.  West,  205,  208,  595 
Foote  v.  Burnett,  265,  269,  321,  384 
Foote  v.  Clarke,  156,  257,  522 
Force  v.  Butcher,  587 
Ford  v.  Belmont,  760 
Ford  v.  Schlosser,  737 
Ford  v.  Walworth,  100,  377 
Ford  v.  Wright,  742 
Ford  v.  Yates,  32 
Fordyce  v.  Ford,  187 
Fore  v.  McKenzie,  88,  112 
Foreman  v.  Wolf,  737 
Forest  v.  Camp,  127 
Forster  v.  Abraham,  714 
Forster  v.  Hoggart,  28,  29 
Forster  v.  Scott,  778 
Forsyth  v.  Leslie,  187,  737,  747,  787 
Forteblow  v.  Shirley,  819 
Forthman  v.  Deters,  509 
Fort  Jeff.  Imp.  Co.  v.  DuPeyster,  625 
Fort  Payne  Coal  &  I.  Co.  v.  Webstvr. 

807 

Fosdick  v.  Burr,  121 
Fosgate  v.  Herkimer  Mfg.  Co.,  798 
Foshay  v.  Shafer,  357 
Foss  v.  btrachn,  539 
Foster  v.  Dwinel,  552 
Foster  v.  Foster,  301,  308,  320,  322 
Foster  v.  Gillam;  683 
Foster  v.  Gressett,  194,  244,  696,  85.* 
Foster  v.  Herkimer     Mfg.     Co.,     202, 

506 

Foster  v.  Jared,  612 
Foster  v.  Kennedy,  235 
Foster  v.  Lyons,  848 
Foster  v.  Thompson,  415 
Foster  v.  Woods,  287 
Foster  v.  Young,  156,  157 
Foute  v.  Elder,  603 
Fowler  v.  Cravens,  696,  697 
Fowler  v.  Johnson,  213 
Fowler  v.  Mnnheimer,  746 
Fowler  v.  Poling,  256,  356,  358,  363, 

436 

Fowler  v.  Shearer,  542 
Fowler  v.  Smith,  365,  443 
Fowler  v.  Ward,  694 
Fox  v.  Birch,  486 


XXXV111 


TABLE   OF   CASES. 


[REFERENCES  ARE  TO   PAGES.] 


Fox  v.  Haughton,  2-t6 

Fox  v.  Kitton,  041 

Fox  v.  McGoodwiii,  78 

Fox  v.  Mensch,  109,  674 

Fox  v.  Widgery,  552 

Foy  v.  Houghton,  342 

Fraker  v,  Brazelton,  799 

Franchot  v.  Leach,  682 

Francis  v.  Hazelrig,  733 

Franciscua  v.  Reigert,  409 

Frank  v.  Riggs,  443,  838 

Franklin  v.  Dorland,  520 

Franz  v.  Orton,  480 

Fraser  v.  Prather,  49 

Fratt  v.  Fiske,  622 

Frazer  v.  Robinson,  641 

Frazer  v.  Supervisors,  256,  258,  271, 

414 

Frazier  v.  Boggs,  34 
Frazier  v.  Tubb,  864 
Frederick  v.  Campbell,  660,  673 
Frederick  v.  Cox,  90 
Freebody  v.  Perry,  486 
Freedman    v.    Oppenheim,    739,    762, 

763,  770 

Freeland  v,  Pearson,  731 
Freeligh  v.  Platt,  462,  609 
Freeman  v.  Auld,  469 
Freeman's  Bank  v.  Vose,  574 
Freeman  v.  Foster,  286,  288 
Freeman  v.  Preston,  67 
Freer  v.  Hesse,  713,  747,  748 
Freetly  v.  Barnhart,  711,  769 
Freize  v.  Chapin,  605 
Freme  v.  Wright,  28,  724 
French  v.  i'olsom,  306 
French  v.  Howard,  851 
French  v.  Genet,  513 
French  v.  Pratt,  130 
French  v.  Spencer,  549 
Frenzel  v.  Miller,  248 
Frey  v.  Rawson,  520 
Freymoth  v.  Nelson,  368 
Friedly  v.  Scheetz,  118,  157,  674 
Friedman  v.  Dewees,  792 
Frink  v.  Bellis,  314 
Frink  v.  Darst,  343,  545 
Frisbie  v.  Hoffnagle,  463 
Frisby  v.  Ballance,  545 
Frische  v.  Kramer,  138 
Fristoe  v.  Latham,  680 
Fritz  v.  Pusey,  290,  298,  300,  367,  407 
Froman  v.  Froman,  483,  575 
Frost  v.  Angier,  306 
Frost  v.  Atwood,  95,  136,  138 
Frost  v.  Bunson,  817 
Frost  v.  Earnest,  355 
Frost  v.  Knight,   19 
Frost  v.  Raymond,  257 
Frost  v.  Smith,  611 
Frost  v.  Yonkers  Sav.  Bank,  120,  130 


Fruhauf  v.  Bendheim,  777 

Fryer  v.  Rockefeller,  63,  77,  762,  760 

Fuchs  v.  Treat,  571 

Fuhr  v.  Cronin,  742,  791 

Fuhrman  v.  London,  &7r  670,  671 

Fuller  v.  Savings  Bank,  559 

Fuller  v.  Hubbard,  150,  208,  591,777 

Fuller  v.  Hovey,  803 

Fuller  v.  Jillette,  292,  311 

Fuller  v.  Williams,  208 

Fulweiler  v.  Baugher,  418,  423 

Funk  v.  Creswell,  333,  363,  367,  363 

Funk  v.  Newcomer,  519 

Funk  v.  Voneida,  281,  291,  308,  322 

Furber  v.  Purdy,  597 

Furman  v.  Caldwell,  141 

Furman  v.  Elmore,  271,  374,  391,  39<J, 

475 

Furnas  v.  Durgin,  282,  359,  365 
Furniss  v.  Williams,  256,  261 
Furnold  v.  Bank,  512 
Fuson  v.  Lambdin,  506 

G. 

Gage  v.  Cummings,  808 
Gager  v.  Edwards,  470 
Gaines  v.  Jones,  738 
Gaines  v.  Kennedy,  138,  139 
Gaines  v.  Merchants'   Bank,   122 
Gaither  v.   O'Doherty,   148,   150,  480, 

798. 

Galbraith  v.  Dilday,  563 
Galbraith  v.  Reeves,  625 
Gale  v.  Conn,  445,  638 
Gale  v.  Dean,  214 
Gale  v.  Edwards,  299 
Gale  v.  Gale,  717 
Gale  y.  Morris,  561,  574 
Gale  v.  Nixon,  616 
Gallagher  v.  Withinpton,  508,  696 
Galloway  v.  Barr,  487 
Galloway  v.  Bradshaw,  826 
Galloway  v.  Finlay,  406,  508 
Galvin  v.  Collins,  764 
Galway  v.  Melchow,  573 
Gamble  v.  Daugherty,  557 
Gamble  v.  McClure,  344 
Games  v.  Bonner,  737 
Gammon  v.  Blaisdell,  16,  354 
Gano  v.  Green,  433 
Gans  v.  Renshaw,  189,  589,  621,  692, 

709,  711,  716,  822 
Gantly  v.  Ewing  130 
Ganz's  Appeal,  600 
Garber  v.  Armentrout,  655 
Garber  v.  Sutton,  793 
Garden  City  L.  Co.  v.  Miller,  765,  772 
Gardner  v.  Dembinsky,  716 
Gardner  v.  Keteltas,  355,  360 
Gardner  v.  Mayo,  860 
Gardner  v.  Moore,  576 


TABLE   OF    CASES. 

[REFERENCES  ABB  TO  PAGES.] 


XXXIX 


Gardner  v.  Niles,  282 

Garfield  v.  Williams,  237,  263,  273 

Garlock  v.  Cross,  383,  385 

Garner    v.    Leaverett,    443,    025,    694, 

696 

Garnett  v.  Garnett,  44 
Garnett  v.  Macon,  108,  700,  782,  784, 

804,  807 

Garnett  v,  Yoe,  202 
Garrard  v.  Lantz,  510,  512,  668 
Garrett  v.  Christopher,  340 
Garrett  v.  Crosson,  668 
Garrett  v.  Lynch,  110,  194 
Garrett  v.  McLain,  549 
Garrett  v.  Stuart,  402 
Garrison  v.  Moore,  409 
Garrison  v.  Sandford,  263,  311 
Gartman  v.  Jones,  453,  646 
Gartrell  v.  Stafford,  492 
Garvin  v.  Cohen,  467,  616 
Gass  v.  Sanger,  411,  865 
Gaston  v.  Frankum,  22 
Gastry  v.  Perrin,  35 
Gates  v.  McLean,  615,  618 
Gates  v.  Parmly,   164,  298,  708,  773, 

778 

Gates  v,  Winslow,  648 
Gault  v.  Van  Zile,  146 
Gaunt  v.  Wainman,  552 
Gautreaux  v.  Boote,  37 
Gay  v.  Hancock,  461,  847,  850,  851 
Gayle  v.   Fattle,  848 
Gazley  v.  Pierce,  33,  150 
Gedye  v.  Duke  of  Montrose,  801 
Gee  v.  Pharr,  343 
Gee  v.  Moore,  332,  548 
Gee  v.  Saunders,  609 
Gehr  v.  Hegerman,  695.  696 
Geiszzler  v.  DeGraaf,  311,  314 
Gen.  Finance  Co.  v.  Liberator  Society. 

517,  540 

Genner  v.  Hammond,  231 
Gennings  v.  Norton,  282 
Gentry  v.  Callahan,  551 
Gentry  v.  Hamilton,  816 
Geoghegan  v.  Conolly,  20,  184 
Geoghegan  v.  Ditto,  138,  140 
George  v.  Conhaim,  47,  762,  810 
George  v.  Putney,  371 
George  v.  Robinson,  376 
George  v.  Stockton,   611,   615 
Georgetown  v.  Smith,  120 
Gerald  v.  Elley,  305 
Gerault  v.  Anderson,  212,  490 
Gerdes  v.  Moody,  563,  570 
Gerhardt  v.  Spalding,  337 
German  Real  Est.  Co.  v.  Starke,  452 
Gest  v.  Flock,  68 
Getchell  v.  Chase,  446,  648 
Getty  v.  Peters,  508,  579 
Geyer  v.  Girard,  526 


Gheen  v.  Harris,  297 

Gibbs  v.  Champion,  489 

Gibbs  v.  Jemison,  229 

Gibbs  v.  Thayer,  332,  546 

Gibert  v.  Peters,  702 

Gibson  v.  Carreker,  214 

Gibson  v.  Choteau,  540,  545,  548 

Gibson  v.  Clarke,  486 

Gibson  v.  Colt,   155 

Gibson  v.  D  Este,  855 

Gibson  v.  Mussey,  158 

Gibson  v.  Newman,  611,  792,  794 

Gibson  v.  Patterson,  811 

Gibson  v.  Richart,  444,  650 

Gibson  v.  Spurrier,  720 

Giddings  v.  Confield,  434 

Giddings  v.  Holter,  336,  368 

Gifford  v.  Ferguson,  445 

Gifford  v.  Society,  447,  458 

Gilbert  v.  Bulkley,  255,  263 

Gilbert  v.  Cherry,  18 

Gilbert  v.  Cooley,  137 

Gilbert  v.  Hoffman,  141,  523 

Gilbert  v.  James,   106 

Gilbert  v.  Peteler,  223,  776 

Gilbert  v.  Rushmer,  318,  319 

Gilbert  v.  Wyman,  282 

Gil  breath  v.  Dilday,  571 

Gilchrist  v.  Buie,  34,  35,  148,  149 

Gilchrist  v,  Dilday,  70 

Giles  v.  Dugro,    270,    298,    303,    375, 

409 

Giles  v.  Paxson,  725 
Giles  v.  Peo.  Nat.  Bank,  597 
Gilham  v.  Real  Est.  Co.,  296 
Gilham  v.  Walker,  838 
Gill  v.  Corbin,  236 
Gill  v.  Ferrin,  286 
Gillam  v.  Briggs,  477 
Gillespie  v.  Torrance,  593 
Gillett  v.  Maynard,  584,  596,610,702 
Gillette  v.  Hill,  137 
Gills  v.  Wells,  722,  757 
Gilpin  v.  Smith,  446,  684 
Gilroy  v.  Alis,  858 
Giltner  v.  Ruyl,  484 
Gimell  v.  Adams,  49 
Ginn  v.  Hancock,  302 
Gish  v.  Moomaw,  725 
Gittings  v.  Worth ington,  346 
Given  v.  McCarroll,  102 
Glass  v.  Brown,  855 
Glass  v.  Richardson,  722 
Glasscock  v.  Minor,  194,  249,  250 
Glasscock  v.  Robinson.  693,  782 
Glassman  v.  Condon,  597 
Gleason  v.  Smith,  353 
Glendenning  v.  Oil  Co.,  519 
Glenn  v.  Allison,  156,  157 
Glenn  v.  Clapp,  81,  82 
Glenn  v.  Rossler,  203 


TABLE   OF    CASES. 


[REFERENCES  ABE  TO  PAGES.] 


Glenn  v.  Thistle,  368,  463  467 

Glover  v.  Shields,  52 

Gobble  v.  Linden,  232 

Oober  v.  Hart,  627 

Gochenour  v.  Mowry,  534 

Goddin  v.  Vaughn,  36,  149,  154,  185, 

193,  195,  818 
Godfrey  v.  Rosenthal,  788 
Godley  v.  Taylor,    155 
Godson  v.  Turner.  30,  196 
Goelth  v.  White,  695 
Goerlitz  v.  Malanistta,  767 
Goettel  v.  Sage,  672,  860 
Goetz  v.  Walters,  811,  814 
Goff  v.  Hawkes,  213,  224,  226 
Goff  v.  O'Connor,  121 
Going  v.  Oakland,  722,  801 
Golden  v.  Maupin,  640 
Goldsmith  v.  Guild,  803 
Gonzales  v.  Hukil,  541 
Gooch  v.  Atkins,  140 
Good  v.  Good,  225 
Good  v.  Herr,  868 
Goodbar  v.  Daniel,  118,  123 
Goodbar  v.  Dunn,  573 
Goode  v.  Smith,  67 
Goodel  v.  Bennett,  389,  522 
Goodell  v.  Sanford,  166 
Goodenough  v.  Fellows,  541 
Goodin  v.  Decker,  195,  622 
Goodkind  v.  Bartlett,  236,  778 
Goodman  v.  Randall,  572,  574 
Goodman  v.  Rust,  69 1 
Goodman  v.  Winter,  139 
Goodwin  v.  Francis,  229 
Goodwin  v.  Maxwell,  335 
Goodyere  v.  Ince,  127 
Gordon  v.  Champneys,  708 
Gordon  v.  Goodman,,  864 
Gordon  v.  Mahoney,  694 
Gordon  v.  Phillips,  444 
Gordon  v.  Sims,  78 
Gore  v.  Brazier,  359,   365,  393,  393. 

400 

Goring  v.  Shreve,  137 
Gorman  v.  Gorman,  740 
Gorman  v.  Salisbury,  581 
Gosbell  v.  Archer,  594,  596 
Goss  v.  Lord  Nugent,  31,  190,  581 
Goss  v.  Singleton,  792 
Gotthelf  v.  Stranahan,  480 
Goucher  v.  Helmbold,  666 
Goucher  v.  Martin,  581 
Gough  v.  Bell,  519 
Gould  v.  Sternberg,  89,  90 
Gould  .v.  Woodward,  63 
Gove  v.  Cather,  63 

Governor  v.  West  Imp.  Commrs.,  78 
Gourdine  v.  Fludd,  477 
Grace  v.  Regal,  209 
Grady  v.  Ward,  739 


Gragg  v.  Richardson,  37,  99,  420,  424, 

428 

Graham  v.  Anderson,  57 
Graham  v.  Dyer,  398,  415,  424 
Graham  v.  Gates,  492 
Graham  v.  Graham,  214 
Graham  v.  Hackwell,  483 
Graham  v.  Hackwith,  483,  490 
Graham  v.  Meek,  542 
Graham  v.  Tankersley,  427,  430 
Granger  v.  Olcott,  648,  860 
Grannis  v.  Clark,  360,  434 
Grant  v.  Hill,  410 
Grant  v.  Law,  695 
Grant  v.  Tallman,  321,  457 
Grant  v.  Wasson,  738 
Grantland    v.    Wight,    154,    477,    703, 

841,  849,  851 

Grapengether  v.  Ferjervary,  576 
Crasser  v.  Black,  707 
Graves  v.  Mattingly,  156 
Graves  v.  Spier,   14 
Graves  v.  Wilson,  30 
Gray  v.  Briscoe,  412 
Gray  v.  Handkisson,  476 
Gray  v.  Hill,  735 
Gray  v.  Jones,  182 
Gray  v.  Mills,  18 
Gray  v.  Smith,  760,  792 
Gray  v.  Ward,  650 
Grayson  v.  Weddle,  572 
Great  Falls  Ice  Co.  v.  Worster,  534 
Great  Western  Stock  Co.  v.  Saas,  265 
Greaves  v.  Ashton,  32 
Green  v.  Biddle,  223 
Green  v.  Campbell,  839 
Green  v.  Chandler.  20,  234,  253,  681, 

805,  819 

Green  v.  Collins,  375 
Green  v.  Covilland,  33 
Green  v.  Finucane.   197 
Green  v.  Ditsch,  705 
Green  v.  Edwards.  387 
Green  v.  Green,    205,    512,    589.    612, 

777 

Green  v.  Hernz,  511,  598,  788 
Green  v.  Irving,    146,    363,    367.    368, 

371 

Green  v.  McDonald,  638,  639 
Green  v.  Pulsford.  715 
Green  v.  Tidball,  296 
Green  v.  Whipple,  838 
Greenblatt  v.  Herrmann,  487.  759 
Greenby   v.    Cheevers,   205,   510,    612, 

804 

Greenby  v.  Wilcocks,  262,  434 
Greene* v.  Allen.  13,  700 
Greene  v.  Creighton.  301,  320,  323 
Greene  v.  Tallman.  317 
Greene  v.  Williams,  211,  424 
Greenlaw  v.  Williams,  428,  429 


TADLE    OF    CASES. 

[INFERENCES  ABE  TO   PAGES.] 


xii 


Greenleaf  v.  Cook,  198,  453,  462,  C49, 

091 

Greenleaf  v.  Queen,  443,  039,  690,  732 
Greenlee  v.  Gaines,  624,  090,  855 
Greeno  v.  Munson,  371 
Greenough  v.  Small,  116 
Greenvault    v.   Davis,   356,    363,    368, 

389,  403 

Greenville  N.  B.  v.  Parkinson,  586 
Greenwood  v.  Hoyt,  219 
Greenwood  v.  Digon,  35 
Gregory  v.  Christian,  812 
Gregory  v.  Peoples,   524,   543,   544 
(ircgory  v.  Scott,  589 
Greville  v.  Da  Costa,  11,  587 
Grey  son  v.  Kiddle,  811 
Greyson  v.  Tuson,  110 
Grice  v.  Scarborough,  284,  299 
Grider  v.  Land  Mtgo.  Co.,  72 
Gridley  v.  Tucker,  461 
Griel  v.  Lomax,  049 
Griffin  v.  Cunningham,  704,  728,  730, 

748,  783 

Griffin  v.  Fairbrother,  256,  381 
Griffin  v.  Reynolds,  363,  392,  410 
Griffin  v.  Sheffield,  542 
Griffith  v.  Bogert,  107 
Griffith  v.  Depew,  625,  698,  702 
Griffith  v.  Kempshall,   242,   245,   453, 

657,  662 

Griffith  v.  Maxfield,  757,  771,  778 
Griffith  v.  Townley,  859 
Griggs  v.  Landis,  193 
Griggs  v.  Woodruff,  193,  203,  625 
Grignon  v.  Astor,  98,  99,  100,  101,  114 
G  rimes  v.  Redman,  525 
Grist  v.  Hodges,  203,  349 
Griswold  v.  Allen,  375 
Griswold  v.  Block,  73 
Griswold  v.  Hazard,  868,  871 
Griswold  v.  Hicks,  107 
Groesbeck  v,  Harris,    357,    414,    421, 

472 

Groesbeck  v.  Seeley,  58 
Groom  v.  Booth,  28 
Gross  Lumber  Co.  v.  Leitner,  117 
Grout  v.  Townsend,  541 
Grove  v.  Bastard,  715 
Grove  v.  Zumbro,  67 
Grubb's  Appeal,  564 
Grubbs  v.  Barber,  444 
Grundy  v.  Jackson,  507,  697 
Grymes  v.  Saunders,  866 
Gue  v.  Jones,  96 
Guerin  v.  Smith,  289,  311 
Guerrant  v.  Anderson,  534 
Guerard  v.  Rivers,  399 
Guest  v.  Horn  fray,  804 
Guice  v.  Sellers,  446 
Guilmartin  v.  Urquhart,  564 
Guinotte  v.  Choteau,  402 


Gulick  v.  Railroad  Co.,  551 
Gump  v.  Sibley,  737 
Gunby  v.  Sluter,  249,  581 
Gunn  v.  Moore,  337 
Gunn  v.  Thornton,  842 
Gunnison  v.  Blaisdell,  354 
Gunnis  v.  Erhart,  32 
Gunter  v.  Williams,  363,  381 
Guthrie  v.  Pugsley,  409,  415 
Guthrie  v.  Russell,  318,  321 
Guthrie  v.  Thompson,  201,  205 
Guttschlick    v.    Bank,    192,   5«7,    619, 

656 

Guynet  v.  Mantel,  827 
Gwin  v.  Calegaris,  595,  741 
Gwin  v.  McCarroll,  113,  115 
Gwinther   v.   Gerding,  238,   G61,   681, 

687 

Gvvynn  v.  Hamilton,  808 
Gwynn  v.  Thomas,  440 

H. 

Haber  v.  Burke,  693 

Habig  v.  Dodge,  340,  547,  549 

Hacker  v.  Blake,  273 

Hacker  v.  Storer,  263,  270,  388 

Racket  v.  Glover,  3(50 

Hackett  v.  Huson,  208 

Haddock  v.  Taylor,  225 

Hadlock  v.  Williams,  091,  822 

Haff  v.   Price,    138 

Haffey  v.  Birchetls,  370,  393,  515 

Haffey  v.  Lynch,  782,  819 

Hagan  v.  Drucker,  740 

Hagensick  v.  Castor,  544,  549 

Haggart  v.  Scott,  798,  799 

Haggin  v.  Olivet,  837 

Hagler  v.  Simpson,  254,  366 

Haight  v.  Hayt,  2:5:5,  080 

Haines  v.  Fort,  424 

Haire  v.  Baker,  285 

Halcombe  v.  Lovvdermilk,  123,  140 

Haldane  v.  Sweet,  194,  299,  305,  446, 

638 

Hale  v.  Cravener,  503,  711,  732,  735 
Hale  v.  Marquette,  109,  111 
Hale  v.  New  Orleans,  393,  799 
Hale  v.  Wilkinson,  616 
Hall  v.  Betty,  20,  22,  28 
Hall  v.  Bray,  363 
Hall  v.  Chuffee,  548 
Hall  v.  Clountz,  805 
Hall  v.  Dean,  291,  317 
Hall  v.  Delaplnine,  214 
Hall  v.  Gale.  259,  448 
Hall  v.  McArtlmr.  589 
Hall  v.  Nevill,  196 
Hall  v.  Plaine,  378 
Hall  v.  Priest,  847 
Hall  v.  Scott,  737 
Hall  v.  Scott  Co.,  265 


xlii 


TABLE   OF    CASES. 

[REFERENCES   ARE  TO  PAGES.] 


Hall  v.  Smith,  30 

Hall  v.  York,  214 

Halley  v.  Oldham,  121 

Halliburton  v.  Slagle,  519 

Halliek  v.  Guy,  112 

Halls  v.  Thompson,  236,  238,  251 

Halsey  v.  Jones,  128,  137 

Ham  v.  Ham,  550 

Hamar  v.  Medskar,  576 

Hamilton  v.  Cutts,  363,  3C8 

Hamilton  v.  Hamilton,  488 

Hamilton  v.  Hulett,  809 

Hamilton  v.  Lusk,  363 

Hamilton  v.  Wilson,  256,  257,  262 

Hamlon  v.  Sullivant,  568 

Hammatt  v.  Emerson,  835 

Hammers  v.  Hanrick,  244,  624 

Hammerschlag  v,  Duryea,  737 

Hammerslough  v.  Hackett,  273,  382 

Hammersmith  v.  Espy,  123 

Hammond  v.  Chamberlain,  78 

Hammond  v.  Hamlin,  213,  216 

Hampton  v.  Pool,  382 

Hampton  v.  Specknagle,  20(5,  770 

Hampton  v.  Webster,  433 

Hancock  v.   Bramlett,  824 

Hancock  v.  Carlton,  526 

Hancock  v.  Cloud,  628 

Hancock  v.  Wiggins,  653 

Hand  v.  Grant,  80,  118 

Handy  v.  Rice,  499 

Handy  v.  Waxter,  80 

Hanks  v.  Pickett,  507 

Hanna  v.  Phillip,  496 

Hanna  v.  Shields,  273,  444,  844 

Hannah  v,  Henderson,  371 

Hannan  v.  McMickle,  (>Tr> 

Hanrick  v.  Patrick,  548 

Hanson  v.  Buckner,  370.  391.  396 

Haralson  v.  Langford,  472.  473 

Haran  v.  Stratton,  297,  348 

Hardeman  v.  Cowan,  506 

Harden  v.  Collins,  545 

Hardigree  v.  Mitchum,  511,  874 

Hardin  v.  Clark,  130 

Hardin  v.  Harrington,  512 

Hardin  v.  Kirk,  57 

Harding  v.  Comm'l  Loan  Co..  838 

Harding  v.  Larkin,     363,     415,     417, 

419,  421 

Harding  v.  Nelthorpe,  244 
Harding  v.  Olsen,  704,  811 
Hardwick  v.  Forbes,  803 
Hardy  v.  Nelson,  398,  430,  526 
Hare  v.  Burges,  155 
Hare  v.  Holloman,  107,  116 
Harkreader  v.  Clayton,  506 
Harland  v.  Eastland,  253 
Harle  v.  McCoy,  618 
Harlow  v.  Thomas,  301,  322 
Harmer  v.  Morris,  529 


Harn  v.  Smith,  521 

Harnett  v.  Yielding,  500 

Harpening  v.  Dutch  Church,  737 

Harper  v.  Dowdney,  296 

Harper  v.  Jeffries,  510,  512,  668 

Harper  v.  Perry,  378,  385 

Harper  v.  Reno,  506 

Harper  v.  Tidholm,  165 

Harr  v.  Shaffer,  368 

Harrass  v.  Edwards  765,  766 

Harriman  v.  Gray,  550 

Harrington  v.  Higgins,  205,  207,  790, 
797 

Harrington  v.  Murphy,  300,  315,  372 

Harris  v.  Bolton,  201,  693 

Harris  v.  Carter,  244,  792,  806 

Harris  v.  Granger,  824,  829 

Harris  v.  Newell,  273 

Harris  v.  Rowan,  446 

Harris  v.  Smith,  723 

Harrison  v.  Boring,  546,  550 

Harrison  v.  Deramus,  198 

Harrison  v.  Harrison,   lOo,  116 

Harrison  v.  Palo  Alto  Co.,  349 

Harrison  v.  Platt,  789,  790 

Harrison  v.  Shanks,   126 

Harrison  v.  Soles,  512 

Hart  v.  Bleight,  192 

Hart  v.  Gregg,  547 

Hart  v.  Handlin,  191,  691,  775 

Hart  v.  Hannibal    &    St.    J.    R.    Co., 
446,  630,  857 

Hart  v.  Porter,  666,  670,  674 

Hart  v.  Smith,  132 

Hartford  Co.  v.  Miller,  263,  273 

Hartley  v.  Costa,  538 

Hartley  v.  Gregory,  282 

Hartley  v.  James,  205,  594,   610,  738 

Hartley  v.  Smith,  715,  730 

Harth  v.  Gibbs,  119,  141,  142 

Hartshorn  v.  Cleveland,  294 

Hartzell  v.  Crumb,  214 

Harvey  v.  Doe,  259 

Harvey  v.  Morris,  619 

Harvie  v.  Hodge,  519 

Harwood  v.  Benton,  309 

Harwood  v.  Bland,  187,  188 

Harwood  v.  Lee,  316,  319 
i  Haseltine  v.  Simmons,  711 
1  Hastings  v.  Hastings,  317,  327 

Hastings  v.  Land  Imp.  Co.,  296 

Hastings  v.  O'Donnell,  649 

Hastings  v.  Vaughn,   69 

Hatch  v.  Barr,  49 

Hatch  v.  Cobb,  487,  813 

Hatcher  v.  Andrews,  302,  838.  839 

Hatcher  v.  Briggs,  139 

Hatt  v.  Rich,  714,  771 

Haug  v.  Primeau,  115 

Haven  v.  Grand  June.  R.  Co.,  426 

Havens  v.  Foster,   873 


TABLE   OF    CASES. 


xliii 


[REFERENCES   ABE  TO  PAGES.] 


Havens  v.  Goudy,  613 
Haverington's  Case,  298 
Hawes  v.  Rucker,  129 
Hawes  v.  Swanzey,  193,  682 
Hawkins  v.  Brown,  414 
Hawkins  v.  Burruss,  66 
Hawkins  v.  Johnson,  602 
Hawn  v.  Norris,  618 
Hawpe  v.  Smith,  110,  111 
Hawralty  v.  Warren,  497 
Hawthorn  v.  City  Bank,  311,  321 
Hayden  v.  Westcott,  60,  72 
Hayes  v.  Bickerstaff,  361,  434 
Hayes  v.  Bonner,  590,  664 
Hayes  v,  Ferguson,  361 
Hayes  v.  Nourse,  720,  788 
Hayes  v.  Skidmore,  827 
Hayes  v.  Tabor,  547 
Raymond  v.  Camden,  107,  138 
Hayner  v.  Smith,  353 
Haynes  v.  Farley,  13,  18,  815 
Haynes  v.  Lucas,  11 
Haynes  v.  Seachrist,  574 
Haynes  v.  Stevens,  386,  421,  526 
Haynes  v.  White,  33,  34,  615 
Haynes  v.  Young,  37  o 

Hays.v.  Bonner,  683 

Hays  v.  Dalton,  138 

Hays  v.  Griffith,  90 

Hays  v.  Trible,  746,  755,  805,  814 

Hayward  v.  Lomax,  511 

Hazelrig  v.  Hutson,  497 

Hazlett  v.  Woodruff,  417 

Headley  v.  Shaw,  180,  207 

Head's  Trustees,  In  re,  809 

Headrick  v.  Wisehart,  285 

Heaarick  v.  Yount,  78,  114 

Heard  v.  Hall,  157 

Hearne  v.  Tomlin,  189,  586 

Hearne  v.  Tenant,  812 

Heath  v.  Black,  127 

Heath  v.  Crealock,  440,  517,  540 

Heath  v.  Newman,  365,  446,  693 

Heath  v.  Whidden,  311 

Heavner  v.  Morgan,  606 

Hebler  v.  Brown,  281,  357,  559 

Heck  v.  Remka,  556 

Hecker  v.  Brown,  754 

Hecker  v.  Sexton,  759 

Hedderley  v.  Johnson,  707,  730,  731 

Hedges  v.  Kerr,  149,  154 

Hedrick  v.  Smith,  419 

Heflin  v.  Phillips,  281,  343,  363,  443, 
838 

Heidenburg  v.  Jones,  207 

Heimburg    v.    Ismay,    228,    497,    775, 
778 

Heisch  v.  Adams,  650 

Heller  v.  Cohen,  740,  762,  789 

Hellreigel  v.  Manning,  731,  764 

Helvenstein  v.  Higginson,  443,  615 


Hemmer  v.  Hustace,  720,  753,  756 
Hempstead  v.  Easton,  .)41 
Henderson  v.  Brown,  843 
Henderson  v.  Grewell,  64 
Henderson  v.  Hay,  145 
Henderson  v.  Henderson,      300,      321, 

402,  831 

Henderson  v.  Lacon,  236 
Henderson  v.  Overton,    119,    122,   517, 

520,  551,  759 

Henderson  v.  Perkins,  745 
Henderson  v.  Rice,  6/ 
Hendricks  v.  Gillespie,   189,  731,  748, 

783,  785,  804 

Hendricks  v.  Goodrich,  695 
Hendricks  v.  Kesee,  262 
Hendricks  v.  Stark,  303,  779 
Hendricks  v.  Wisehart,  285 
Hendrickson  v.  R.  Co.,  128 
Henning  v.  Withers,  271,  391 
Henry  v.  Elliott,  646,  848 
Henry  v.  Liles,  148,  492 
Henry  v.  McEntyre,  377 
Henry  v.  McKerlie,  513 
Hensley  v.  Baker,  125 
Hepburn  v.  Auld,  763,  805,  822 
Hepburn  v.  Dunlop,  691,  7!)8 
Heppinstall  v.  O'Donnell,  779 
Herb  v.  Met.  Hosp.  &  Disp.,  325 
Herbemont  v.  Sharp,  477,  641 
Herbert  v.  Smith,  715 
Herbert  v.  Stanford,  613 
Herington  v.  Clark,  368 
Herman  v.  Sommers,  716,  733 
Herndon  v.  Venable,  213,  222 
Herrick  v.  Moore,  290,  300,  325 
Herrick  v.  Moore,  290,  30G,  325 
Herrin  v.  Mclntyre,  384 
Herrod  v.  Blackburn,  38 
Herron  v.  DeBard,  473 
Herryford   v.    Turner,    148,   446,   471. 

599 

Hersey  v.  Turbett,  667 
Hertzberg  v.  Irwin,  668,  718,  759 
Hertzog  v.  Hertzog,  213,  223,  225 
Hester  v.  Hunnicuft,  368 
Hewitt  v.  Powers,  573,  576 
Heyn  v.  Ohmann,  436 
Hiatt  v.  Callaway,  558 
Hibbert  v.  Shee,  586 
Hicks  v.  Hicks,  181 
Hicks  v.  Lovell,  615 
Hickson  v.  Linggold,    112,  625,  80.1 
Hickson  v.  Rucker,  78 
Higgina  v.  Eagleton,  14,  193,  203,  507, 

815 

Higgins  v.  Johnson,  515 
Higginson  v.  Clowes,  31,  32 
Hightower  v.  Smith,  739 
Higley  v.  Smith,  156,  649 
Higley  v.  Whittaker,  613 


xliv 


TABLE   OF    CASES. 

[REFERENCES  ABE  TO  PAGES.] 


Hilary  v.  Waller,  737 

Hile  v.  Davison,  838 

Hileman  v.  Wright,  559 

Hill  v.  Bacon,  292 

Hill  v.  Billingsly,    138 

Bill  v.  Buckley,  491 

Hii.  v.  Butler,  447 

Hill  v.  Fiske,  487 

Hill  v.  Hobart,  14,  33,  207,  214 

Hill  v.  Ressegieu,  36,   151,   152 

Hill  v.  Samuel,  506,  616,  695 

Hill  v.  West,  542 

Hilmert  v.  Christian,  280 

Hilton  v.  Duncan,  625 

Hinckley  v.  Smith,  824 

Hinds  v.  Allen,  424,  430 

Hines  v.  Jenkins,  430 

Hines  v.  Richter,  211 

Hines  v.  Robinson,    521 

II inkle  v.  Margerum,  241 

Hipwell  v.  Knight,  795,  802 

Hiss  v.  McCabe,  60 

Hitchcock  v.  Caruthers,  138 

Hitchcock  v.  Fortier,   526 

Hitchcock  v.  Giddings,  252,  652,  859, 

866 

Hitchins  v.  Pettingill,  566 
Hite  v.  Kier,  594 
Hoag  v.  Rathbun,  458,  841 
Hoback  v.  Kilgore,  148,  151 
Hobbs  v.  King,  381,  541 
Hobein  v.  Drewell,  467 
Hobson  v.  Bell,  25 
Hobson  v.  Buchanan,  799 
Hochster  v.  De  La  Tour,  19 
Hodges  v.  Fabian,  116 
Hodges  v.  Latham,  358 
Hodges  v.  Litchfield,  220 
Hodges  v.  Saunders,   154,  381 
Hodgson  v.  Farrell,  107 
Hoe's  Case,  127 
Hoffman  v,  Bosch,  392 
Hoffman  v.  Colyer,   726 
Hoffman  v.  Kirby,  409,  459,  556 
Hoffman  v.  i<ett,  41 
Hogan  v.  McMurtry,   794 
Kogan  v.  Weyer,  696 
Hogg  v.  Odom,  45 
Hogsett  v.  Ellis,  464 
Hoke  v.  Jones,  843,  849 
Holabird  v.  Burr,  574 
Holbrook  v.  Debo,  548 
Holden  v.  Curtis,  654 
Holden  v.  Taylor,  361 
Holeman  v.  Maupin,   848 
Holin  v.  Wust,  165 
Holladay   v.   Menifee,   273,   430,   435, 

616 

Holland  v.  Anderson,  248,  253,   691 
Holland  v.  Holmes,   148 
Holland  v.  Johnson,  95 


Holland  v.  Moon,  576 
Holland  v,  Rogers,  37 
Hollenburgh  v.  Morrison,  591 
Hollifield  v.  Landrum,  159,  614,  729, 

741,  765 

Hollingsworth  v.  Mexia,   401 
Hollister  v.  Dillon,  141 
Holley  v.  Younge,  455,  (>82 
Holloway  v.  Miller,  368.  400,  508 
Holly  v.  Hirsh,  713,  728 
Holman  v.  Creagmiles,  469 
Holman  v.  Criswell,  11,  152 
Holmes  v.  Holmes,  201,  220.  797,  831 
Holmes  v.  Richards,   735,  744 
Holmes  v.  Seaman,   402 
Holmes  v.  Shaver,   80 
Holmes  v.  Sinnickson,   391,   422 
Holmes  v.  Wood,  756 
Holt's  Appeal,  762 
Holtzinger  v.   Edwards,   118,   123 
Holyoke  v.  Clarke,    156 
Home   Life  Ins.   Co.  v.   Sherman,  364 
Homer  v.  Purser,  863 
Honaker  v.  Shougli,   138 
Hoock  v.  Bowman,  374,  810 
Hood  v.  Clark,  281 
Hood's  Appeal,  418 
Hood  v.  Huff,  616 
Hooker  v.  Folsom,  366,  444 
Hooper  v.  Armstrong,  458 
Hooper  v.  Henry,  526 
Hooper  v.  Jackson,   808 
Hooper  v.  Sac.  Co.  Bank,  372 
Hoot  v.  Spade,   410 
Hoover  v.  Chamber,  808 
Hope  v.  Blair,  97 
Hope  v.  Stone,  340,   540,  548 
Hopkins  v.  Delaney,   63 
Hopkins  v.  Lane,  380,  383 
Hopkins  v.  Lee,  14,  214,  217 
Hopkins  v.  Mayzck,  871 
Hopkins  v.  Yowell,   215 
Hopper  v.  Hopper,  497 
Hopper  v.  Smyser,  286 
Hopp  v.  Lutkin,  836 
Hoppes  v.  Cheek,   351,   443,   838,   840 
Hoppin  v.  Hoppin,  519 
Horbach  v.  Boyd,  521 
Horbach  v.  Gray,  671 
Horn  v.  Butler,  725 
Hornbeck  v.  Building  Assn.,  71 
Hornbeck  v.  Westorook,  45 
Home   v.   Rogers.   34,    195,    197,   603, 

757 

Hooner  Y.  Lowe,  650 
Horner  v.  State  Bank,  9S) 
Horrigan  v.  Rice,  261 
Horrocks  v.  Rigby,  491 
Horsford  v.  Wrfeht,  398 
Horton  v.  Arnold,  448,  616 
Hosford  v.  Nichols,   146 


TABLE    OF    CASKS). 
[REFERENCES  ABE  TO  PAGES.] 


xlv 


Hough  v.  Rawson,  604 

Hough taling  v.  Lewis,  657 

House  v.  Kendall,  587,  769 

House  v.  McCormick,  520 

Houslay  v.  Lindsay,  It 

Houston  v.  Dickinson,  400 

Houston  v.  Henley,    194,   834,   84J 

Houston  v.  Randolph,  65 

Houx  v.  Bates  Co.,  570 

Howard  v.  Doolittle,  353 

Howard  v.  ]Sorth,  137 

Howard  v.  Randolph,  43,  456,  477 

Howe  v.  Harrington,    155,   545 

Howe  v.  Hunt,  712 

Howe  v.  Hutehinson,   164 

Howe  v.  Walker,  283 

Howell  v.  Richards,  255,  338,  351 

Howes  v.  Barker,  657 

Howland  v.  Bradley,  502 

Hoxie  v.  Finney,  548 

Hoy  v.  Smythies,  2!) 

Hoy  v.  Taliaferro,  367,  446 

Hoyt  v.  Dimon,   529 

Hoyt  v.  Ketcham,  776 

Hoyt  v.  Tuxbury,   165,  786,  802 

Hubbard  v.  Chappel,  458,  844 

Hubbard  v.  Norton,     306,     322,     380, 

410 

Hubert  v.  Grady,  472 
Hudgin  v.  Hudgin,   107,  138,  513 
Hudson  v.  Max  M.  L,  &  I.  Co.,  492, 

804 

Hudson  v.  Steare,   300 
Hudson  v.  Swift,  200,  612 
Hudson  v.  Watson,  200,  208 
Huff  v.  Chamberlain,  365 
Huff  v.    Cumberland   Val.   Land   Co., 

365 

Huff  v.  Reilly,   357,  414 
Huffman  v.  Gains,   131 
Hughes  v.  McNider,  459,  537,  813 
Hughes  v.  Parker,   20,  21 
Huish's  Charity,  In  re,  715 
Hulett  v.  Hamilton,  650 
Hulfish  v.  O'Brien,  435,  667 
Hull  v.  Hull.   107,   138,  340 
Hulse  v.  White,  391,  416 
Hume  v.  Bentley,  29,   184,  817 
Hume  v.  Dessar,  844 
Hume  v.  Pocock,  29,  249,  724 
Humphrey  v.  Clement,  300,  497,  409 
Humphrey  v.  McClenachan,   410,   860 
Humphrey  v.  Wade,   78 
Humphreys  v.  Hurtt,  555 
Humphreys  v.  Moses,   734 
Humpkey  v.  Norris,  15 
Hun  v.  Bourdon,   191 
Hundley  v.  Tibbitts,  792 
Hunt  v.  Amidon,  358,  381,  451,  676 
Hunt  v.  Marsh,   446 
Hunt  v.  Middlesworth,  383,  463 


Hunt  v.  Moore,  243,  246 

Hunt  v.  Orwig,  381,  389,  405 

Hunt  v.  Rousmaniere,  868,  872,  874 

Hunt  v.  Silk,  191,  697 

Hunt  v.  Smith,  494 

Hunt  v.  Stearns,  808 

Hunt  v.  Weir,  769 

Hunter,  In  re,  20 

Hunter  v.  Bales,  481,  821 

Hunter  v.  Goudy,   201 

Hunter  v.  Graham,  475 

Hunter  v.  Jameson,  155 

Hunter  v.  O'Neill,  34 

Hunter  v.  Watson,  45 

Huntley  v.  Waddell,  337,  342 

Huntsman  v.  Hendricks,  412 

Hurd  v.  Hall,  858,  860 

Kurd  v.  Smith,  444 

Hurley  v.  Brown,  480,  807 

Hurley  v.  Coleman,  458 

Hurst  v,  Litligrow,   382 

Hurst  v.  McNeil,   180 

Hurst  v.  Means,  15,  16,  603,  616,628 

Hurt  v.  Blackstown,   190 

Hurt  v.  McReynolds,   190,  478,  601 

Hussey  v.  Roqueniore,  578 

Huston  v.  Noble,  704 

Hutchins  v.  Brooks,  109 

Hutchins  v.  Carleton,   50 

Hutchins  v.  Moody,  300 

Hutchins  v.  Rountree,  415 

Hutchinsou  v.  A  ins  worth,  576 

Hutchinson  v.  Crowley,  201 

Hutchinson  v.  McNutt,  480,  797 

Hutson   v.   Furnas,  557,  571 

Huyck  v.  Andrews,  302,  304,  308 

Hyatt  v.  Seeley,   151 

Hyde  v.  Dallaway,  31,  737 

Hyde  v.  Keller,   201,  692,   772 

Hyde  v.  Kelly,   493 

Hyde  v.  Redding,  103 

Hyman  v.  Boston  Chair  Mfg.  Co.,  343, 

364 

Hymes  v.  Branch,  710,  720,  767 
Hymes  v.  Esty,  304,  306,  310,  413 
Hymes  v.  Van  Cleef,  391 
Hyne  v.  Campbell,  762,  766,  860 
Hynes  v.  Oldham,  92 
Hynes  v.  Packard,  409 
Hyslip  v.  French,  695 


Ice  v.  Ball,  657 

Ikelheimer  v.  Chapman,  113 

111.  Land  Co.  v.  Boomer,  385,  389,  525 

Inderlied  v.  Honeywell,  356 

Ingalls  v.  Cook,  293,  526 

Ingalls  v.  Eaton,  275,  277,  279 

Ingalls  v.  Hsilin.   12,   17,  719 

Inge   v.  Lippingwell,  581 

Ingraham  v.  Grigg,  63,  70 


xlvi 


TABLE   OF    CASES. 

[REFERENCES   ARE  TO  PAGES.] 


Ingraham  v.  Ward,  445 

Ingram  v.  Little,   49 

Ingram  V.  Morgan,  245,  833,  839 

Inness  v,  Agnew,  205,  333 

Innis  v.  Willis,  20,  587,  G91 

Ins.  Co.  v.  Marshall,  650 

Irbey  v.  Wilson,  103 

Irick  v.  Fulton,  8G9 

Irvin  v.  Askew,   214 

Irvin  v.  Blackley,  201,  205,  539 

Irvine  v.  Irvine,  5,  11,  539,  551 

Irving  v.  Browuell,  68 

Irving  v.  Campbell,   721,   728,   763 

Isaacs  v.  Skrainka,  798,  829 

Isele   v.   Arlington   Sav.    Bank,   302 

Ishmael  v.   Parker,   200 

Isler  v.  Eggers,  619 

Ives  v.  Kimball,  62 

Ives  v.  Niles,  336,  426,  671,  673 

Ives  v.  Pierson,  112 

Ivey  v.  McKennon,  106 

J. 

Jack  v.  McKee,  214 
Jackson  v.  Ashtou,   692 
Jackson  v.  Bradford,   534,   547 
Jackson  v.  Brown,    137 
Jackson  v.  Bull,  5,   16,  544 
Jackson  v.  Cory,  45 
Jackson  v.  Conlin,    164 
Jackson  v.  Dermont,   259 
Jackson  v.  Edwards,  !)(),  498,  804,  830 
Jackson  v.  Fosbender.    458 
Jackson  v.  Green.  257.  339 
Jackson  v.  Hoffman,  286,  341,  524 

524 

Jackson  v.  Hubbell,   -183,   544 
Jackson  v.  Knight,  607 
Jackson  v.  Ligon,   187,   195,  800,  813, 

817,   827 

Jackson  v.  Littell,   52.'),   544 
Jackson  v.  Marsh,    424 
Jackson  v.  McCauley,  357,  371 
Jackson  v.  McGinniss.    137 
Jackson  v.  Mills,  524 
Jackson  v.  Moncrief,   618 
Jackson  v.  Murray,  544,  732,  769,  813 
Jackson  v.  Norton,   635,   834,   847 
Jackson  v.  Peck,   544 
Jackson  v.  Rosevelt,  128,  129 
Jackson  v.  Sassaman,   L80 
Jackson  v.  Schoonmaker,  44 
Jackson  v.  Sellick,  362 
Jackson  v.  Summerville,  523 
Jackson  v.  Turner,  214,  391,  414 
Jackson  v.  Vanderheyden,  541,  542 
Jackson  v.  Waldron,  550 
Jackson  v.  Walsh  L.  Co.,  849 
Jackson  v.  Whitehead,  28,  30 
Jackson  v.  Winslow,  519,  544,  546 
Jackson  v.  Wright,   483 


Jacobs  v.  Locke,  494 

Jacobs  v.  Morrison,  715 

Jacocks  v.  Gillian,  330 

Jacoway  v.  Gault,  64,  71 

Jacques  v.  Vigo  Co.,  481 

James  v.  Cutler,  566 

James  v.  Hayes,  444,  657 

James  v.  Jenkins,   307,  309 

James  v.  Lamb,   404 

James  v.  Lawrenceburgh  Ins.  Co.,  463 

James  v.  Lichfield,  491,  500 

James  v.  McKennon,  857 

James  v.  Myers,  91,  711,  734,  756 

James  v.  Warehouse  Co.,  306,  413 

James  v.  Shore,   826 

Jandorf  v.  Patterson,  856 

Jaques  v.  Esler,  453,  468,  640.  838 

Jarboe  v.  McAtee,   744,   754,   797 

Jarden  v,  Lafferty,  436 

Jarman  v.  Davis,  704 

Jarrett  v.  Jarrett,  568 

Jarvis  v.  Aiken,  531 

Jasper  v.  Hamilton,  249,  250 

Jayne  v.  Boisgerard,   138 

Jayne  v.  Brock,  608 

Jefferson  v.  Curry,  129 

Jeffery  v.  Underwood,  50 

Jeffries  v.  Jeffries,  776 

Jendvine  v.  Alcock,  819 

Jenkins  v.  Buttrick,  298 

Jenkins  v.  Fahig,  799,  820 

Jenkins  v.  Hilcs,  816 

Jenkins  v.  Hopkins,  269,  320,  351 

Jenkins  v.  Whitehead,  798 

Jenkinson  v.  Ewing,  478,  648 

Jenks  v.  Quinn,  93,  381 

Jenks  v.  Ward,  298,  300 

Jenness  v.  Parker,  446,  455 

Jenness  v.  Spraker,  588 

Jennings  v.  Brizendine,   556,   560 

Jennings  v.  Jenkins,  78 

Jennings  v.  Jennings,  79 

Jerald  v,  Elley,  326 

Jerome  v.   Scudder,  483,  492,  494 

Jervois  v.    Duke   of  Northumberland, 

706 
Jeter    v.    Glenn,    281,    312,    356,   417, 

422,  475 

Jett  v.  Farmers'  Bank,  433 
Jctt  v.  Locke,  626 
Jewell  v.  Bannon,  451 
Jewell  v.  Porter,   519 
Jewett  v.  Fisher,  289,  421 
John's  Estate,   115 
Johns  v.  Frick,  118 
Johns  v.  Hardin,  347,  366,  424,  426 
Johns  v.  Nixon,   475 
Johnson's  Appeal,   673 
Johnson  v.  Branch,  519,  547 
Johnson  v.  Burnside,   620,   624 
Johnson  v.  Caldwell,  137 


TABLE   OF    CASES. 

[REFERENCES  ABE  TO  PAGES.] 


xlvii 


Johnson  v.  Collins,  202,  291 

Johnson  v.  Dorough,  603 

Johnson  v.  Farlow,  521 

Johnson  v.  Fuller,  484 

Johnson  v.  Gere,  453,  637,  838 

Johnson  v.  Hathorn,  657 

Johnson  v.  Hollensworth,  280,  332 

Johnson  v.  Houghton,  826,  864 

Johnson  v.  Jarrett,    198 

Johnson  v.  Jones,  446,  835,  848 

Johnson  v.  Johnson,  524 

Johnson  v.  Long,  472 

Johnson  v.  McGhee,    62 

Johnson  v.  Monell,  286 

Johnson  v.  Nichols,  289 

Johnson  v.  Nyce,  300,  359 

Johnson  v.  Oppenheim,  353 

Johnson  v.  Pryor,  244 

Johnson  v.  Purvis,  476 

Johnson  v.  Robertson,  137 

Johnson  v.  Smock,  35 

Johnson  v.  Sandhoff,    138 

Johnson  v.  Silsfill,  609 

Johnson  v.  Thweatt,  174 

Johnson  v.  Tool,  38 

Johnson  v.  Walton,  284 

Johnson  v.  Williamson,  646 

Johnson  v.  Wilson,  838 

Johnson  v.  Wygant,   206,  207 

Johnston  v.  Beard.  200,  208,  209 

Johnston  v.  Gallery,  776 

Johnston  v.  Haines,   58 

Johnston  v.  Houghton,  22 

Johnston  v.  Johnston,  206 

Johnston  v.  Markle  Paper  Co.,  284 

Johnston  v.  Mendenhall,   38,    150 

Johnston  v.  Piper,   148,    149 

Johnston  v.  Powell,  472 

Johnston  v.  Scott,  52 

Jones  v.  Bland,  436 

Jones  v.  Blumenstein,   123 

Jones  v.  Coffey,    106 

Jones  v.  Cohen,  655 

Jones  v.  Cohitsett,  265 

Jones  v.  Davis,  291,  293 

Jones  v.  Fulghum,  458,  639 

Jones  v.  Gardner,  1,  35,  49,  300,  778 

Jones  v.  Haff,  731 

Jones  v.  Hanna,  724 

Jones  v.  Jones,  424,  434 

Jones  v.  Keen,  240 

Jones  v.  King,   519 

Jones  v.  Manley,  138 

Jones  v.  Noe,  444 

Jones  v.  Phillips,  36,  148 

Jones  v.  Richmond,  356,  382 

Jones  v.  Robbins,  812 

Jones  v.  Shackelford,   492 

Jones  v.  Shay,  399 

Jones  v.  Smith,    137 

Jones  v.  Stanton,  838 


Jones  v.  Sweet,  576 
Jones  v.  Tarver,  48 
Jones  v.  Taylor,  190,  602,  731,  793, 

807,  815 

Jones  v.  Waggoner,  424,  838 
Jones  v.  Warner,  260,  263,  264 
Jones  v.  Warnock,   109 
Jones  v.  Wood,  657 
Jopling  v.  Dooley,  826 
Jordan  v.  Blackniore,   273 
Jordan  v.  Denton,  480 
Jordan  v.  Eve,  305 
Jordan  v.  Poillon,  752,  760 
Joslyn  v.  Schwend,  812 
Joslyn  v.  Taylor,  36 
Josselyn  v.  Edwards,  252 
Jourdain  v.  Jourdaiu,  330 
Joyce  v.  Ryan,  648,  676 
Judd  v.  nandall,  280 
Judice  v.  Kerr,  122 
Judson  v.  Wass,  35,  587,  601,  777 
Julian  v.  Beal,   140 
Junk  v.  Barnard,  213 
Juvenal  v.  Jackson,  671 

K. 

Kahn  v.  Mount,  737,  744,  780 

Kaiser  v.  Earhart,  519 

Kane  v.  Fisher,  419 

Kane  v.  Hood,  206 

Kane  v.  Rippey,  594 

Kane  v.  Sanger,  379,  382,  384 

Kans.  Pae.  If.   Co.  v.  Dunmyer,  358, 

368,   406 

Kares  v.  Covell,  604 
Karker  v.  Haverly,  204,  774 
Katz  v.  Henig,  13 
Katz  v.  Kaiser,  787,   791 
Kauffelt  v.  Leber,  155,  157 
Kauffman  v.  Walker,  88 
Kavanagh  v.  Kingston.  386 
Kearney  v.  Hogan,  776 
Keating  v.  Guntlier,  195,  828 
Keating  v.  Korfhage,  303 
Keating  v.  Price,  822,  827,  829 
Kebler  v.  Cureton,  477,  6U.1 
Keeble  v.  Bank,  815 
Keeler  v.  Wood,  398,  417,  423 
Keep  v.  Simpson,  815 
Keepfer  v.  Force,  571 
Keifer  v.  Roger,  242 
Keim  v.  Lindley,  4S5,  487 
Keim  v.  Sachs,  789 
Keitel  v.  Zimmerman.  772 
Keith  v.  Silberberg,  72 
Keller  v.  Ashford,  288 
Kellogg  v.  Chapman,  559 
Kellogg  v.  Ingersoll.   306 
Kellogg  v.  Malin,  305,  31S,  322 
Kellogg  v.  Robinson,  301 
Kellogg  v.  Wood,   389,   526 


xlviii 


TABLE    OF    CASES. 


[REFERENCES   ARE  TO  PAGES.] 


Kellum  v.  Ins.  Co.,  260,  299 

Kelly  v.  Allen,  628 

Kelly  v.  Bibb,  490 

Kelly  v.  Bradford,  149 

Kelly  v.  Brower,  828 

Kelly  v.  Calhouu,   Gl,  63 

Kelly  v.  Dutch  Church,  351,  356,  394, 

408,  431 

Kelly  v.  Jenness,  524 
Kelly  v.  Kershaw,   616 
Kelly  v.  Lowe,  318,  372,  469 
Kelly  v.  Price,   410 
Kelly  v.  R.  Co.,  235 
Kelly  v.  Riley,  681 
Kelly  v.  Solari,    122 
Kelly  v.  Turner,  560 
Kelly  v.  Wiseman,  431 
Kelsey  v.  Crowther,  166,  201 
Kelsey  v.  Remer,  291,  321 
Kelso  v.  Lorillard,  768 
Kemp  v.  Penna.  R.  Co.,  661 
Kemp  v.  Porter,  60 
Kemper  v.  Walker,  802,  822 
Kempner  v.  Cohn,   214 
Kempner  v.  Lumber     Co.,     340,     392, 

410 

Kempshall  v.   Stone,  487 
Kendall  v.  Crawford,  760 
Kennedy's   Appeal,    674 
Kennedy  v.  Embry,   474 
Kennedy  v.  Gramling,  738 
Kennedy  v.  Johnson,  244 
Kennedy  v.  Koopman,  770,  820 
Kennedy  v.  McCartney,  527 
Kennedy  v.  Newman,   279,  292 
Kennedy  v.  Price  64 
Kennedy  v.  Wool  folk,   193 
Kennison  v.  Taylor,  422,  423 
Kenniston  v.  Blakie,  73,  74 
Kenny  v.  Gardner,  602 
Kenny  v.  Hoffman,      148,     251,     783, 

787,  806 

Kenny  v.  Norton,   263 
Kent  v.  Allen,  720 
Kent  v.  Cantrall,   281,   326 
Kent  v.  Chalfant,  156 
Kent  v.  Hareourt,    520 
Kent  v.  Watson,  545 
Kent  v.  Welch,  356 
Kentucky  Dist.,  &c.,   Co.  v.  Warwick 

Co.,  164 

Kercheval  v.  Triplett,  527 
Kern  v.  Kloke,  357 
Kerney  v.  Gardner,  602 
Kerr  v.  Kitchen,  245,  671,  677 
Kerr  v.  Purdy,  204 
Kerr  v.  Shaw,  365,   371 
Kerrigan  v.   Backus,   775 
Kerst  v.  Ginder,  203 
Kester  v.  Rockel,  820 
Ketchum  v.  George,   116 


Ketchum  v.  Evertson,    150,   579 

Ketchum  v.  Stout,   494 

Key  v.  Hanson,  443,  462,  464 

Key  v.  Jennings,  446,  «2:$,  841 

Key  v.  Key,  227 

Keyse  v.  Heydon,    29 

Keyse  v.  Powell,  21 

Keyton  v.   Bradford,  849 

Kibler  v.  Cureton,  836 

Kidder  v.  Bork,  359 

Kiefer  v.  Roger,  233,  245,  249 

Kieii  v.  Stukely,  806 

Kilgore  v.  Pedin,  126 

Kilpatrick  v.  Barron,   721,   767 

Kilpatrick  v.  Stozier,   573 

Kimball  v.  Bell,  598,  811 

Kimball  v.  Blaisdell,  534 

Kimball  v.  Bryant,  266,  412 

Kimball  v.  Grand  Lodge,  351,  352 

Kimball  v.  Johnson,   58 

Kimball  v.  Saguin,  371,  602,  687 

Kimball  v.  Schaff,   525 

Kimball  v.  Semple,   59,   6:5,   332,   340, 

548 

Kimball  v.  West,   443,    538,   633,   639 
Kimball  v.  Tooke,   707 
Kimbrough  v.  Burton,  122 
Kime  v.  Kirne,  201 
Kimmel  v.  Benna,   545 
Kimmel  v.  Scott,  824 
Kincaid  v.  Britain,  255,  256,  259,  271 
Kindley  v.  Gray,  798 
King  v.  Bressie,   338,  395,  451 
King  v.  Doolittle,  873 
King  v.  Gilson,  211,  537,  538,  540 
King  v.  Gunnison,   109,  674 
King  v.  Jones,  258,  438 
King  v.  Kerr,  320,  334,  370.  384,  391, 

410,  414,  429,   431 
King  v.  Kilbride,  288,  366 
King  v.  King,   190 
King  v.  Knapp,  239,  732,  828 
King  v.  Pyle,  225 
King  v.  Rea,  542 
King  v.  Savery,   188 
King  v.  Thompson,    702 
King  v.  Wilson,   822 
Kingdon  v.   Nottle,  258,  2G5,  382 
Kingsbury  v.  Milher,   837,   845 
Kingsbury  v.  Smith,  420 
Kingsbury  v.  Stoltz,   127 
Kingston  Bank  v.  Ettinge,   122 
Kinney  v.  Knoebel,    136 
Kinney  v.  McCulloch,   311 
Kinney  v.  Norton,  372 
Kinney  v.  Watts,  391,   408 
Kinports  v.  Rawson,  849,  851 
Kinsman  v.  Loomis,  529,  545 
Kintrea  v.  Preston,  22 
Kip  v.  Hirsh,  761,  787,  788 
Kirby  v.  Estill,  366,  424 


TABLE   OF    CASES. 


zlix 


[REFERENCES   ARE  TO  PAGES.] 


Kirk  v.  Zell,  558,  569 
Kirkendall  v.  Mitchell,  145,  331 
Kirkland  v.  Little,  206,  726,  727 
Kirkland  v.  Wade,    110,  6C5 
Kirkpatrick  v.  Downing,  214,  229,701 
Kirkpatrick  v.  Pearce,  297,  326 
Kirkpatrick  v.  Miller,  371 
Kirkwood  v.  Lloyd,  737 
Kirtland  v.  Pounsett,  189,  220 
Kirtz  v.   Pet-K,   633 
Kley  v.  Geiger,  292 
Klopp  v.  Moore,  156,  157 
Klumpki  v.  Baker,  519 
Knadler  v.  Sharp,  265,  321 
Knapp  v.  Lee,  36,  446,  461,  609 
Knapp  v.  Marlboro,  431 
Knatchbull  v.  Grueber,  188,  193,  692, 

829 

Knedler  v.  Lang,  741,  743 
Knepper  v.  Kurtz,  365 
Knight  v.  Coleman,  473 
Knight  v.  Crockford,  202 
Knight  v,  Maloney,  758 
Knight  v.  Thayer,  531,  542 
Knight  v.  Turner,    443 
Knipe  v.  Palmer,  154,  156 
Knowles  v.  Kennedy,  538 
Knowlton  v.  Amy,  238 
Koch  v.  Hustis,  341 
Koepke  v.  Winterfield,  363 
Roger  v.  Kane,  461,  468,  833,  849 
Kohner  v.  Higgins,  39 
Kolher  v,  Kolher,  82 
Kopp  v.  Kopp,  734 
Kornegay  v.  Everett,  562,  869 
Kortz  v.   Carpenter,  361 
Koshland  v.  Spring,  776 
Kostenbader  v.  Spotts,  69,  731 
Kostendader  v.   Pierce,  305,  323 
Kountze  v.   Hellmuth,   191,  776 
Kramer  v.  Carter,  370,  372,  375,  376 
Kramer  v.  Ricke,  657 
Kraemer  v>  Adelsberger,  720 
Krause  v.  Krause,  20 
Kreibich  v.  Martz,  188,  734 
Kreitsch  v.  Mertz,  810 
Krekeler  v.  Aulbach,  777,  782 
Krewson  v.  Cloud,  248 
Kruger  v.  Adams,  38 
Krumm  v.  Boach.  13,  224,  234,  237 
Kuchenbeiser  v.  Beckert,  107 
Kuhn  v.  Freeman,  354,  824 
Kuhner  v.  Parker,  447,  458 
Kuhn's  Appeal,  669 
Kill  I  man  v.  Cox,  717 
Kurtz  v.  Hollingshed,  44 
Kutz  v.  McCune,  302,  304,  307 
Kyle  v.  Fauntelroy,  415,  417,  420 
Kyle  v.  Kavanaugh,   150,  865 
Kyle  v.  Febley,  285,  868 


Lacey  v.  Marman,  273 

Lacey  v.  McMillan,   192 

Ladd  v.  Blunt,   140 

Ladd  v.  Montgomery,    312 

Ladd  v.  Myers,   289 

Ladd  v.  Noyes,  263,  301 

Ladd  v.  Weiskopf,  714,  718,  722 

Laderoute  v.  Chale,  288 

Ladue  v.  Cooper,  310 

Ladue,  In  re,  767 

Lafarge  v.  Matthews,  444,  622 

Lafferty   v.  Milligan,  294 

Laidlaw  v.  Organ,  238 

Lake  v.  Brutton,  241 

Lake  Erie,  etc.,  R.   Co.   v.   Whitbam, 

69 

Lallande  v.  West,  304 
Lally  v.  Holland,  573 
Lamb  v.  Baker,  359 
Lamb  v.  Burbank,  439 
Lamb  v.  Danforth,  259,  350,  375 
Lamb  v.  James,  406,  609,  655 
Lamb  v.  Kami,  547 
Lamb  v.  Smith,  680 
Lamb  v.  Wakefield,  340,  547 
Lambden  v.  Sharp,  55 
Lambert  v.   Kstes,   363,   368?   392 
Lamerson  v.  Marvin,  447,  462 
Lamkin  v.  Reese,  81,   114,  556,  865 
Lammot  v.  Bowley,  869 
Lamprey  v.  Whitehead,  736 
Lampton  v.  Usher,   114,  609 
Lancaster  v.  Wilson,  89,  105,  106 
Lancoure  v.  Dupre,  225,   702,  703 
Land  Co.  v.  Hill,  633,  839 
Land  Co.  v.  North,  357  • 
Landlord  v.  Dunkton,  115 
Landsdowne  v.  Landsdowne,  869,  871, 

874 

Landt  v.  Mayor,  275 
Lane  v.  Bommelman,  93 
Lane  v.  Fury,  370,  374,  423 
Lane  v.  Latimer,  695 
Lane  v.  Patrick,  655 
Lane  v.  Richardson,  291,  315 
Lane  v.  Tidball,   461,   851 
Lane  v.  Woodruff,  385 
Lang  v.  Waring,   118 
Lange  v.  Jones,  493,  849 
Langford  v.  Pitt,  798 
Langford  v.  Selmes,  21 
Langlow  v.  Cox,   165 
Langsdale  v.  Nicklaus,  295 
Langton  v.  Marshall,  65 
Lanier  v.  Foust,  474 
Lanier  v.  Hill,  244,  252,  606,  855, 875 
I  Lanigan  v.  Kille,  407,  408 
j  Lanitz  v.   King,   191 

Lansing  v.  Quackenbush,  123 
I  Lansing  v.    van  Alstyne,  358,  369 


TABLE  OF  OASES. 


[REFERENCES   ABE  TO  PAGES.] 


Lant  v.  Norria,  332 

I>anyon  v.  Chesney,  495 

Large  v.  McLain,  281 

Latham  v.  Morgan,  841 

Lathers  v.  Keogh,  295,  296 

Latimer  v.  Capay  Val.  Co,,   192 

Latimer  v.  Wharton,    84 

Lattin  v.  Vail,  447 

Lauer  v.  Lee,  578,  581 

Laughnian  v.  Thompson,  102,  113 

Laughery  v.  McLean,  444,  477 

Laurens  v.  Lucas,  708 

Laurenson  v.  Butler,  495,  502 

Lavender  v.  Lee,  556 

Laverty  v.  Moore,   732 

Law  v.  Grant,   236 

Law  v.  Hyde,  572 

Lawless  v.  Collier,  265,  274,  404,  633, 

642 

Lawless  v.  Evans,   274 
Lawless  v.  Mansfield,  506 
Lawrence  v.  Beaubein,   870,   871,   872 
Lawrence  v.  Chase,   214 
Lawrence  v.  Dale,    14,   36,   194 
Lawrence  v.  Montgomery,    311 
Lawrence  v.  Parker,   47 
Lawrence  v.  Simonton,   207 
Lawrence  v.  Sinter,   380,   383 
Lawrence  v.  Taylor,  36,  202,  595 
Lawton  v.  Howe,  404,  860 
Leach  v.  Forney,  497 
Leach  v.  Johnson,   187 
Leach  v.  Leach,  777 
Leach  v.  Pxowley,  610,  726 
Leahy  v.  Hair,  710 
Leal  v.  Terbush,  446,  463,  464 
Leary  v.  Durham,   146,  350,  366,  444 
Learned  v.  Eiley,  62 
Leather  v.  Poulteny,  106,  428,  431 
Lebanon  Sav.  Bank  v.  Hollenbeck,  575 
Leddy  v.  Enos,  281,  357,  373 
Lee  v.  Clary,  519 
Lee  v.  Dean,  220,  225,  668,  687 
Lee  v.  Foard,  35 
Lee  v.  Gardiner,   138 
Lee  v.  Lee,  752,  767 
Lee  v.  Porter.  508 
Lee  v.  Russell,  211 
Leet  v.  Gratz,  370,  404,  406 
Leffingwell   v.    Elliott,    370,    404,   422, 

423 

Leffingwell  v.     Warren,  737 
Leflore  Co.  v.  Allen,  524 
Lt'ftwich  v.  Xeal,  67 
Leggett  v.  McCarty,  459,  639,  838 
Lcggett  v.  Mut.  Ins.   Co.,  231 
Leiker  v.  Henson,  493 
Leinhardt  v.  Kalcheim,  776 
Leird  v.  Abernethy,  833,  839 
Lejeune  v.  Barrow,   414 
Lejeune  v.  Herbert,  683 


Leland  v.  Stone,  284,  397 

Lemon  v.  Kogge,  768 

Le  Moyne  v.  Quimby,  112 

Lenehan  v.  College,  755 

Leonard  v.  Austin,  450,  468 

Leonard  v.  Bates,    145,  206 

Leonard  v.  Cary,   367 

Leonard  v.  Mills,  567 

Leonard  v.  Pitney,  661,  686 

Leonard  v.  Woodruff,  735 

Lerfing  v.  Seelig,  293 

Lerman  v.  Hubner,  737 

Le  Roy  v.  Beard,  154 

Lesesne  v.  Witte,  797 

Leslie  v.  Slusher,  43 

Lesley  v.  Morris,  711,  777,  815 

Lessenich  v.  Sellers,  166,  189 

Lessley  v.  Bowie,  475,  477 

Letcher  v.  Woodson,  213 

Lethbridge  v.  Kirkman,  28,  724 

Lethbridge  v.  Mytton,   282 

Lett  v.  Brown,  615,  622 

Levitzky  v.  Canning,  353,  422 

Levy  v.  Bond,  353 

Levy  v.  Iroquois  Bldg.  Co.,  748 

Levy  v.  Hill,  779,  790 

Levy  v.  Newman,  757 

Levy  v.  Riley,   113,   138 

Lewis  v.  Baird,  517 

Lewis  v.  Bibb,  276 

Lewis  v.  Bond,  30 

Lewis  v.  Boskins,  506 

Lewis  v,  Braithwaite,  21 

Lewis  v.  Cook,  380,  382 

Lewis  v.  Coxe,  769,  777 

Lewis  v.  Davis,  443 

Lewis  v.  Day,  38 

Lewis  v.  Gale,  487 

Lewis  v.  Herndon,   739 

Lewis  v.  Jones,  250 

Lewis  v.  Lee,  214 

Lewis  v.  Lewis,  359,  572 

Lewis  v.  McMillen,  464,  581,  593,  609. 

616,    626 

Lewis  v.  Morton,  445,  638,  645 
Lewis  v.  Ridge,  263 
Lewis  v.  Ross,  401 
Lewis  v.  West,  450 
Lewis  v.  White,   18,  39,  580,  591,  690 
Ley  v.  Huber,  807 
Libby  v.   Hutchinson,   377 
Liber  v.  Parson,  399 
Liddell  v,  Sims,  691 
Life  Association  v.  Siddall,   187 
Lighty  v.  Shorb,  670,  672 
Lillard  v.  Ruckers,  45 
j^inderman  v.  Berg,  426 
Lindley  v.  Dakin,  260,  299 
Lindley  v.  Lukin,  224 
Lindsay  v.  Eastwood,  294 
Linkous  v.  Cooper,  757 


TABLE    OF    CASES. 


II 


[CEFEBEXCI8  AEE  TO  PAGES.] 


Linn  v.  Barkey,   145 

Linn  v.  McLean,  732,  817 

Linsey  v.  Ferguson,  622 

Linsey  v.  Ramsey,  519 

Linton  v.  Allen,  35,  288,  523,  610 

Linton  v.  Hichborn,  781 

Linton  v.  Porter,   112 

Lister  v.  Batson,  213 

j^ippincott  v.  Wikoff,  714 

Little  v.  Allen,  331,  863 

Little  v.  Dodge,  67 

Little  v.  Paddleford,  595 

Littlefield  v.  Getchell,  380 

Littlefield  v.  Tinsley,     190,    602.    698, 

703,  718.  731.  759 
^ively  v.  Rice,  288 
Livingston  Bank  v.  Sailing,  286 
Livingston  v.  Iron  Works,  259 
Livingston  v.  McDonald,    59 
Livingston  v.  Short,   847 
Lloyd  v.  Farrell,  150,  666,  684 
Lloyd  v.  Griffiths,  147 
Lioyd  v.  Jewell,  36,  461 
Lloyd  v.  Kirkwood,   107 
Lloyd  v.  Quimby,   152,  291,  31.3,  3S5, 

399,  405 

Lloyd  v.  Sandusky,  392,  403,  409 
Locke  v.  Furze,  212,  408 
Locke  v.  Hale,  298 
Locke  v.  White,  545,  548 
Lockhart  v.  Smith,  721 
Lockman  v.  Reilly,  723.  759 
Lockridge  v.  Foster,    194,   239,   68G 
Lockwood  v.  Gilson,  155,  157 
Lockwood  v.  Hannibal  &  St.  J.  R.  Co., 

206,  815 
Lockwood  v.  Sturtevant,  152,  25G,  257, 

263,  385 

Logan  v.  Bull,  744,  807 
Logan  v.  Moore,  519,  521 
Logan  v.  Neill,  519 
Logan  v.  Steele,  519 
Logansport  v.  Case,   132 
Logue  v.  Atkinson,  525 
Loiseau  v.  Threlstad,  410 
London   Bridge  Acts,   154 
Long  v.  Brown,  556,  865 
Long  v.  Crews,  58,  62 
Long  v.  Hartwell,  641 
Long  v.  Howard,   424 
Long  v.  Israel,  468,  639,  849 
Long  v.  filler,  484 
Long  v.  Moler,  284,  291.  295 
Long  v.  Saunders,   615 
Long  v.  Wheeler,  417,  423 
Long  v.  Waring,  SO 
Long  v.   wellcr,  78 
Longworth  v.  Taylor.  711 
Loomis  v.  Bedell,  340.   363.   367,   370. 

404,  422 
Loomis  v.  Pingree,  546,  550 


Loomis  v.  Wadhams,  214 

Looney  v.  Reeves,  394,  397,  398 

Loos,  In  re,  130 

Lord  v.  Stephens,  726 

Lot  v.  Thomas,  256,  259,  263,  526 

Lothrop  v.  Snell,  356,  446 

London  v.  Robertson,  110 

Lougher  v.  Williams,  350 

Loughran  v.  Ross,  260 

Louisville,  etc.,  R.  Co.  v.  Stone  Co., 

692 
Lounsbery  v.  Locander,   35,    14t>,   492, 

495 

Lounsbery  v.  Snyder,  353 
Lourance  v.  Robertson,  392,  304,  401 
Love  v.  Berry,  112 
Love     v.  Camp,  482,  500 
Love  v.  Cobb,   482 
Love  v.  Powell,  127 
Lovelace  v.  Harrington,  843 
Loveridge  v.  Coles,  612 
Lovett  v.  Saw  Mill  Assn.,  61 
Lovingston  v.  Snort,  638,  69(5 
Lowdermilk  v.  Corpenning,  130 
Lowe  v.  Allen,  574 
Lowe  v.  Lush,   707,  730 
Lowell  v.  Daniels,  541 
Lowndes  v.   Chishohn,  870 
Lowery  v.  Nicols,  811 
Lowery  v.  Yawn,  363 
Lowery  v.  Tilleny,  258,  263,  266 
Lowry  v.  Brown,  653 
'Lowry  v.  Cox,   222 
Lowry  v.  Hurd,   633 
Lowry  v.  Muldrow,  767 
Lowther  v.  Com'th,  391 
Loyd  v.  Malone,   106 
Lucas  v.  Chapeze,  607 
Lucas  v.  Scott,  497,  500 
Lucas  v.  Wilcox,  410 
Luchetti  v.  Frost,  201 
Luckett  v.  Triplett,  837,  847 
Luckett  v.  Williamson,   35,   492,   743, 

798,   819 

Luckie  v.   McGlusson,  248,  252 
Lucy  v.  Lexington,  257,  263 
Ludlovv  v.  Gilman,  458 
Ludlow  v.  O'Xeil,  764 
Ludlow  v.  Van  Jvess,  772 
Ludwell   v.   Newman,  360 
Ludwick  v.  Huntzinger,  657,  668,  670 
Lukens  v.  Jones.  671 
Lukens  v.  Nicolson.  433 
Lull  v.  Stone,  34,  36,  38 
Lundgren  v.  Kerkow,  367 
Lunsford  v.  Turner,  371 
Lurman  v.   Hubnor,  737 
Luse  v.   Dietz.  807.  808 
Lutweller  v.  Linnell,  208 
Lutz  v.  Compton,  814 
Lydall  v.  Weston,  169,  707,  713 


lii 


TABLE   OF    CASES. 


[HEFEKEXCES   ABE  TO  PAGES.] 


Lyle  v.  Earl  of  Yarborough,  816 
Lyles  v.  Kirkpatrick,  738,  797 
layman  v.  Gedney,  747 
Lyman  v.  Stroudburgh,  734 
Lynch  v.  Baxter,   109,    117,   695 
Lynch,  Ex  parte,  422 
Lynch  v.  Livingston,  58 
Lynch  v.  Merc.  Trust  Co.,   13 
Lyon  v.  Anable,  681 
Lyon  v.  Day,  598 
Lyon  v.  Karn,  46 
Lyon  v.  McCurdy,  115 
Lyon  v.  O'Kell,  598 
Lyon  v.  Richmond,  868,  874 
Lyons  v.  Fitzpatrick,  648 
Lyons  v.  Pyatt,  578,  810 
Lysney  v.  Selby,  686 

M. 

Mabie  v.  Matteson,  155 

Maccaw  v.  Crawley,  738 

Mack  v.  Patchin,  210,  213,  407 

Mackey  v.  Ames,  501,  802.  812 

Mackey  v.  Collins,  356,  475 

Mackey  v.  Harmon,  303,  322 

Madden  v.  Leak,  853 

Madely  v.  Booth,  28 

Maeder  v.  Carondelet,  343.  433 

Magaw  v.  Lathrop,  190,  804 

Magee  v.  Hallett,  543 

Magee  v.  McMillan,  203,  62S.  S38,  848 

Maginess  v.  Fallon,  194,  715,  737 

Maguire  v.  Marks,  124,  140 

Maguire  v.  Riggin,  265 

Mahoney  v.  Allen,  83,  786 

Mahony  v.  Robbins,  444 

Main,  Sir  Anthony's  Case,  203 

Major  v.  Dunnavant,  410 

Majors  v.  Brush,  602,  648,  676 

Malins  v.  Freeman,  31 

Mallard  v.  Allred,  603 

Maltby  v.  Thews,  706 

Manahan  v.  Smith,  398 

Mandigo  v.  Conway,  311 

Maner  v.  Washington,  477,  639,  676 

Maney  v.  Porter,  249 

Manifee  v.  Morrison,  156 

Manitoba  Fish  Co.  v.  Booth,  18 

Mann  v.  Matthews,  425,  427 

Mann  v.  Young,  519 

Manser  v.  Buck,  28,  31 

Manson  v.  Brimfield  Manf'g  Co.,  831 

Manf'g.  Co.  v.  Zellner,  341 

Marbury  v.  Thornton,  356 

Marcus  v,  Clark,  195 

Mardes  v.  Myers,  46 

Margraf  v.  Muir,  228,  488 

Maris  v.  lies,  285 

Markham  v.  Todd,  607 

Markland  v.  Crump,  383 

Markley  v.  Swartzlander,  73 


Marks  v.  Halligan,  768 

Marlin  v.  Willink,  618 

Marple  v.  Scott,  298 

Marsh  v.  Fish,  281 

Marsh  v.  Sheriff,  252,  538 

Marsh  v.  Thompson,  444 

Marsh  v.  Wyckoff,  799 

Marshall  v.  Oilman,  195 

Marshall  v.  Caldwell,  492 

Marshall  v.  Haney,  213 

Marshall  v.  Hopkins,  464 

Marshall  v.  Weininger,  776 

Marston  v.  Bradshaw,  69 

Marston  v.  Hobbs,  256,  262.  270,  275, 

279,  325 

Martin  v.  Anderson,  702 
Martin  v.  Atkinson,  224,  :573,  507 
Martin  v.  Baker,  265 
Martin  v.  Chambers,  615 
Martin  v.  Colby,  498 
Martin  v.  Cotter,  713,  737 
Martin  v.  Cowes,  425 
Martin  v.  Dollar,  571 
Martin  v.  D welly,  66,  541.  576,  655 
Martin  v.  Foreman,  470 
Martin  v.  Gordon,  387,  402 
Martin  v.  Hamlin,  761 
Martin  v.  Hammon,  275 
Martin  v.  Long,  271,  392 
Martin  v.  Martin,  358 
Martin  v,  McCormick,  859.  860 
Martin  v.  Merritt,  228,  497 
Martin  v.  Nixon,  563,  573 
Martin  v.  Porter,  755,  758 
Martin  v.  Wharton,  455 
Marvin  v.  Applegate,  633.  695 
Marvin  v.  Bennett,  864 
Maryland  v.  Const.  Co.  v.  Kuper,  793, 

798 

Mason  v.  Bovet,  14 
Mason  v.  Brock,  66,  69,  70 
Mason  v.  Caldwell,  156 
Mason  v.  Cooksey,  363,  435 
Mason  v.  Ham,  157 
Mason  v.  Kellogg,  367,  429 
Mason  v.  Lawing,  703 
Mason  v.  Moulder,  576 
Mason  v.  Swan,  702 
Mason  v.  Wait,  112 
Massey,  Succession  of,  117 
Massie  v.  Craine,  260 
Massie  v.  Sebastian,  542.  847 
Masson  v.  Bovet,  194,  695,  697 
Mastin  v.  Halley,  74,  563 
Matheny  v.   Stewart,  417.  422 
Mather  "v.  Corliss,  336 
Mather  v.  Leman,   755 
Mather  v.  Tremty.  362 
Matney  v.  Rat! iff,  773 
Matta  v.  Henderson,  695 


TABLE    OF    CASES. 


liii 


[REFERENCES   ABE  TO  PAGES.] 


Matteson   v.    Vaughn,    303,   367,    387, 

636 

Matthews  v.  Crowder,  839 
Matthews  v.  Lightner,  722,  724 
Mattock  v.  Kinglake,  200 
Matthison  v.  Wilson,  204 
Maule  v.  Ashmead,  354 
Mawson  v.  Fletcher,  491,  503 
Maxfield  v,  Bierbauer,  238,  602 
Maxwell  v.  Gregory,  587 
Maxwell  v.  Wilson,  337 
May  v.  Adams,  570 
May  v.  Arnold,  531 
May  v.  Ivie,  473 
May  v.  McKeenon,  59 
May  v.  Wright,  391,  395 
Mayer  v.  Adrian,  196 
Mayes  v.  Blanton,  587 
Maynard  v.  Moseley,  649 
Mayo  v.  Babcock,  326 
Mayo  v.  Purcell,  195 
Mayor  v.  Baggatt,  343 
Mayor  v.  Bulkley,  54 
Mayor  v.  Mabie,  343,  352,  375 
Mays  v.  Swope,  813 
McAbee  v.  Cribbs,  287 
McAleer  v.  McMullen,  575 
McAllister  v.  Harmon,  740,  748,  804, 

811 

McAllister  v.  Landers,  408 
McAlpine  v.  Reichenecker.   164,  588 
M«Alpin  v.  Woodruff,  392,   400,   408, 

421 

McAninch  v.  Laughlin,  868 
Me  Arthur  v.  Oliver,  551 
McBride  v.  Greenwood,  545 
McCabe  v.  Kenny,  740 
McCaffrey  v.  Little,  80,  712,  713 
McCahill  v.  Hamilton,  752,  788 
McCall  v.  Wilkes,  335 
McCann  v.  Edwards,    73S,    753,    763, 

810,  813 

McCartney  v.  King,  80,  123 
McCarty  v.  Leggett,    262,     264,     315, 

537 

McCasland  v.  Life   Ins.   Co.,   571,  562 
McCasky  v.  Graff,   141 
McCauley  v,  Moore,  189 
McUaugherty    v.    Bennett,    360,    377, 

379,  388 

McClennan  v.  Prentice,  276,  635,  640 
McClerkin  v.  Sutton,  273 
McClure  v.  Campbell,  284.  295 
McClure  v.  Gamble,  379,  391 
McClure  v.  McClure.  269,  392 
McClure  v.  Raben,  547 
McConaughey    v.    Bennett,    360,    377. 

379,  388 

McComb  v.  Wright,  746,  816.  818 
McConihe  v.  Fales,  637 
McConnell  v.  Downs,  370 


McConnell  v.  Dunlop,  225,  492 
McConnell  v.  Little,  443 
McConnell  v.  Smith,  109 
McCool  v.  Jacobus,  36,  600 
McCord  v.  Massey,  300,  509 
McCorkle  v.  Rhea,  115 
McCoy  v.  Bayley,  564 
McCoy  v.  Lord,  373 
McCracken  v.  Flanagan,  95 
McCracken  v.  San  Francisco,  188,  62S 
McCracken  v.  Wright,  544 
McCrady  v.  Brisbane,  265 
MeCrath  v.  Myers,  459 
McCraven  v.  McGuire,  60,  69 
McCrillis  v.  Thomas,  368,  369 
McCroskey  v.  Ladd,  166,  741 
McCulloch  v.  Gregory,  715 
McCullogh  v.  Boyd,  610 
McCullogh  v.  Estis,  91 
McCullough  v.  Cox,  464 
McCusker  v.  McEvoy,  531 
McDaniel  v.  Bryan,  633 
McDaniel  v.  Evans,  184 
McDaniel  v.  Grace,  443,  462,  464,  407 
McDaniels  v.  Flower  Brook  Mfg.  Co., 

49,  61 

McDermott  v.  McDermott,   746,  772 
McDill  v.  Gunn,  285 
McDonald  v.  Bach,  789,  808 
McDonald  v.  Beall,  233,  650 
McDonald  v.  Green,  446,  638,  848 
McDonald  v.  Hanson,  134 
McDonald  v.  Morgan,  46 
McDonald  v.  Vaughan,  440.  695 
McDonnell  v.  Milholland,  561 
McDonough  v.  Cross,  137 
McDonough  v.  Martin,  342 
McDougal  v.  Dixon,  770 
McDowell  v.  Hunter,  365 
McDowell  v.  McKesson,  194,  578 
McDowell  v.  Milroy,  318,  471 
McDunn  v.  Des  Moines,  633,  840 
McElya  v.  Hill,  815,  839,  845 
McFadden  v.  Rogers,  571 
McFerran  v.  Taylor,  488 
McGary   v.    Hastings,    358,    363,   30S. 

370,  373,  404 
McGavock  v.  Bell,  79 
McGarrahan  v.  Mining  Co.,  174 
McGee  v.  Carrico,  698 
McGee  v.  Wains,  138 
McGhee  v.  Ellis,  126,  140 
McGhee  v.  Jones,  444,  603.  638.  839 
McGinnis  v.  Noble,  510,  512,  668 
McGlynn  v.  Maynz,  776 
McGoodwin  v.  Stephenson,  385 
McGoon  v.  Scales,  90 
McGowan  v.  Bailey,  061 
McGowan  v.  Meyers,  302,  308 
McGown  v.  Wilkins.  83,  88 
AlcGrane  v.  Kennedy,  711 


liv 


TABLE   OF    CASES. 


[ REFERENCES   ABE  TO  PAGES.] 


.ucGrew  v.  Harmon,  413 
MeGuckin  v.  Milbank,  315,  317 
McGuffey    v.    Humes,    391,    396,    414. 

417 

McGuire  v.  Bowman,  739 
McGuire  v.  Jtly,  127 
McHany  v.  Schenck,  137 
McHenry  v.  Yokum,  463.  466 
Melndoe  v.  Morman,  625,  698,  797 
Mclnerny  v.  Beck,  45 
Mclnnis  v.  Lyman,  351,  363,  535,  536 
Mclntosh  v.  Smith,  122 
Mclntyre  v.  Long,  650 
Mclver  v.  Walker,  52 
McKay  v.  Carrington,  698.   798,   804 
McKee  v.  Bain,  404,  417,  423 
McKee  v.  Brandon,  214 
McKeen  v.  Beaupland,  620,  695 
McKennan  v.  Doughman,  284,   292 
McHenry  v.  Settles,  50 
McKinney  v.  Jones,  798 
McKinney  v.  Watts,  224,  826 
...c-Kinzie  v.  Stafford,  61 
McKleroy  v.  Tulare,  145 
McKoy  v.  Chiles,  60S 
McLain  v.  Coulter,  511 
McLane  v.  Allison,  341 
McLarin  v.  Irvin,  625,  699,  741 
McLaughlin  v.  Daniel.  513 
McLaughlin  v.  McDaniel.  140 
McLaughlin  v.  Miller,  295,  296 
McLaurin  v.  McLaurin,  106 
McLaurin  v.  Parker,  605 
McLean  v.  Connerton.  472 
McLean  v.  Webster,  372 
McLeery  v.  McLeery,  552 
McLemore  v.   Mabson,   244,   443,  628, 

843,  848 
McLennan  v.  Prentice.   274,  362,   538, 

856 

McLeod  v.  Barnum,  458 
McLeod  v.  Skiles,  284 
McLeod  v.  Snyder,  206 
AlcLogan  v.  Brown,  127 
McLowry  v.  Croghan,  213,  343 
McMahon  v.  Stewart,  286 
McManus  v.  Blackmar,  37,  38 
McManus  v.  Cook,  698 
McManus  v.  Keith,  80 
McMath  v.  Johnson,  611 
McMichael  v.  Russell.  318,  319 
McMillan  v.  Reeves,  117 
McMullan  v.  Butler  Co.,  360,  363 
McMullin  v.  Wooley,  302,  376 
McMurray  v.  Fletcher.  46 
McMurray  v.  Spicer,  193,  813 
McMurray  v.  St.  Louis  Oil  Co.,  868 
McNair  v.  Compton,  214 
McNally  v.  Haynes,   116 
McNamara  v.  Artnur,  19 
McNamara  v.  Pengilly,  47,  201 


McXeal  v.  Calkins.  650 

McXear  v.  McCoinber,   340,  414 

McXeill  v.  Fuller,  738,  799 

McXew  v.  Walker,  448 

McPherson  v.  Schade,  728.  789,  828 

McPherson  v.  Smith,  716.  736 

McPike  v.  Heaton,  295,  311 

McQueen  v.  Choteau,  487 

McQueen  v.  Farquhar,  715.  822 

McQueen  v.  State  Bank.  613 

McRea  v.  Purmort,  402 

McTucker  v.  Taggart,  5C8 

McWhirter  v.  Swaffer,  448.  538,  640 

McWilliams  v.  Jenkins,  G25 

McWilliams  v.  Long,  205 

McWilliams  v.  Xisley,  519 

Mead  v.  Altgeld,  710,  759,  764 

Mead  v.  Fox,  35,  166,  858 

Mead  v.  Johnson,  150,  155,  858 

Mead  v.  Martens.  708,  779 

Mead  v.  Stack-pole,  360 

Meade  v.  Brown.  338,  377 

Meade  v.  Jones,  338 

Meadows  v.  Hopkins,  506 

Meadows  v.  Meadows,  115 

Means  v.  Brickell,  82,  477 

Meason  v.  Kaine,  211,  225 

Mech.  Bank  v.  Cleland,  821 

Mich.  Sav.  &  B.  L.  Assn.  v.  O'Connor. 

79 

Mecklem  v.  Blake,  265,  277,  635 
Medina  v.  Stoughton,  650 
Medlar  v.  Hiatt.  302,  308,  320 
Medlicot  v.  O'Donel.  191 
Meek  v.  Sprachn,  856 
Meeks  v.  Bowennan,  352 
Meeks  v.  Garner.  235,  729,  S05 
Melick  v.  Cross,  302,  492,  776 
Mellen  v.  Boarman.  113,  12.">,  155 
Mellon  v.  Webster,  39 
Mellon's  Appeal,  510,  512,  668 
Melton  v.  Coffelt,  205 
Melton  v.  Smitn,  487 
Memmert  v.  McKeen,  257,  307,  308 
Menard  v.  Massey,  543 
Menifee  v.  Marye,  96,  99.  507 
Merc.  Trust  Co*  v.  So.  Park  Res.  Co., 

96,  255.  271,  418,  422.  42.1 
Merchants'  Bank  v.  Harrison,  59 
Merchants'  Bank  v.  Thompson,      767, 

805 

Merges  v.     Ringler,  81,  789,  790,  822 
Merriam  v.  Rauen,  132 
Merrill  v.  Merrill.  204 
Merrill  v.  Montgomery,  01 
Merrill  v.  Suing,  356,"  433 
Merriman  v.  Xorman,   238,   839 
Merritt  v.  Byers,  523 
Merritt  v.  Gonley,  633 
Merritt  v.  Harris,   545 
Merritt  v.  Hunt,  155,  646,  846 


TABLE   OF    CASES. 


Iv 


[BEFEBE.VCE8  ABE  TO   PAGES.] 


Merritt  v.  Morse,  422,  426 

Merritt  v.  Yates,  72 

Mervin  v.  Vanlier,  87,  118 

Mervin  v.  Smith,  107 

Meservy  v.  Snell,  422 

Meshew  v.  Southworth,   804 

Meaaer  v.  Oestrich,     200,     333,     409, 

414 

Mesick  v.  Sunderland,    170,    171 
Metcalf  v.  Dallam,  813 
M.  E.  Church  v.  Robinson,  770 
M.    E.    Church    Home    v.    Thompson, 

718,  720 

Methvin  v.  Bixley,  118,  llf) 
Mette  v.  Dow,  401,  415,  417  . 
Meyer  v.  Boyd,  737,  764 
Meyer  v.  Madreperla,   74G 
Meyers  v.  Markhain,   481 
Mhoon  v.  Wilkinson,  208 
Michael  v.  Michael,  566 
Michael  v.  Mills,  633 
Michel  v.  Tinsley,  563,  568 
Mickel  v.  Hicks,   116 
Middlebury    College    v.    Cheney,    ,">02, 

529,  538 
Middlokauff  v.  Barick,   446,  6.'5S,   050, 

861 

Middlemore  v.  Goodale,  380 
Middleton  v.  Findla,   46,   764 
Middleton  v.  Selby,  816,  818 
Middleton  v.  Thompson,       424,       420, 

430 

Midgott  v.  Brooks,  331,  332 
Mid  Great  West.  R.  Co.  v,  Johnson, 

874 

Miesell  v.  Ins.   Co.,  727 
Miles  v.  Furnace  Co.,  488 
Milkman  v.  Ordway,  489 
Miller  v.  Argyle,   461,  851 
Miller  v.  Duncan,   122 
Miller  v.  Avery,    366,    447,    451,    637, 

838,  848 

Miller  v.  Bayless,  341 
Miller  v.  Bentley,  337 
Miller  v.  Cramer,  738,  741 
Miller  v.  Ewing,  332,  551 
Miller  v.  Feezor,  87 
Miller  v.  Finn,   118 
Miller  v.  Fraley,  653 
Miller  v.  Halsey,  405 
Miller  v.  Lamar,  446 
Miller  v.  Long,  445,  603,  638 
Miller  v.  Macomb,  731,  768 
Miller  v.  Miller,  839 
Miller  v.  Owens,  604,  847 
Miller  v.  Parsons,  440 
Miller  v.  Rhuman,  568 
Miller  v.  Watson,  676 
Miller  v.  Weinstein,  716 
Milligan  v.  Cooke,  831 
Millinger  v.  Daly,  73 


Million  v.  Riley,  121 

Mills  v.  Abraham,  447 

Mills  v.  Bell,  391,  399 

Mills  v.  Catlin,    255,    299,    324,    326, 

340 

Mills  v.  Herndon,  117 
Mills  v.  Lockwood,  569,  570 
Mills  v.  Rice,  433 
Mills  v.  Saunders,  446,  470 
Mills  v.  Seminary,  572 
Mills  v.  Traylor,  473 
Mills  v.  Van  Voorhis,  195 
Milmoe  v.  Furnace  Co.,  501 
Milot  v.  Reed,  281,  292 
Milward  v.  Earl  of  Thanet,  811 
Mincey  v.  Foster,  793 
Miner  v.  Beekman,   138 
Miner  v.  Clark,  429 
Miner  v.  Hilton,    47,    790 
Minor  v.  Edwards,   190 
Minor  v.  Natchez,   127 
Mischke  v.  Baughn,  401,  413 
Missouri  Schnelle  Lumber  Co.  v.  Bar- 
low, 257 
Miss.    R.    Logging    Co.    v.    Whelihan, 

331 
Missouri    K.    &    T.    R.    Co.   v.    Pratt, 

587,  598 
Missouri  Val.   Land   Co.   v.   Bushnell, 

769 

Mitchell  v.  Allen,  798 
Mitchell  v.  Barry,  506 
Mitchell  v.  Christopher,   650 
Mitchell  v.  De  Roche,  618 
Mitchell  v.  Dibble,  470 
Mitchell  v,  Hazen,   155,  271,  399,  416 
Mitchell  v.  Kintzer,   105 
Mitchell  v.  Mitchell,  576 
Mitchell  v.  McMullen,    111,    446,    838 
Mitchell  v.  Pinckney,  78,  82',  87,  157, 

189 

Mitchell  v.  Petty,' 519 
Mitchell  v.  Pillsbury,  292,   297,  326 
Mitchell  v.  Sherman,  608 
Mitchell  v.  Stanley,  322 
Mitchell  v.  Stinemitz,  706,  710 
Mitchell  v.  Vaughan,  356 
Mitchell  v.  Warner,     263,     302,     334, 

377 

Mitchell  v.  Woodson,  483,  545 
Mitchell  v.  Zimmerman,  683 
Mitchener  v.  Holmes,   758,  764 
Mix  v.  Beach,  485 
Moak  v.  Bryant,  73,  74 
Moak  v.  Johnson,  408,  409 
Mobile  Co.  v.  Kimball,  488 
Mobley  v.  Keys,  35,  589,  603 
Mock  v.  Chalstrom,   798 
Moggridge  v.  Jones,  455,  462,  609 
Mohr  v.  Maniere,  117 
Mohr  v.  Parmelee,  303,  320,  323,  409 


Ivi 


TABLE    OF    CASES. 


[DEFERENCES   ARE  TO   PAGES.] 


Mohr  v.  Tulip,  117 

Moliter  v.  Sheldon,  375 

Molloy  v.  Egan.  812 

Molloy  v.  Sterne,  28,  724 

Monagan  v.  Small,  708,  767 

Alonarque  \v.  Monarque,  757 

Monell  v.  Colden,  661,  687 

Monell  v.  Donglan,  289 

Monroe  v.  Skelton,  566 

Monson  v.  Stevens,  206,  611,  792 

Monte  v.  Allegre,  The,   118 

Montgomery  v.  North     Pac.     R.     Co., 

404,  406 
Montgomery  v.  Pac.    L.    Co.    Bureau, 

710,  7il 
Montgomery  v.  Reed,    259,    271,    276, 

279 

Moody  v.  Leavitt,  422 
Moody  v.  Spokane  R.  Co.,  36 
Mooney  v.  Burchard,  370 
Moore  v.  Allen,   125,   140 
Moore  v.  Appleby,   38,   708,    720,   759 
Moore  v.  Baker,  519 
Moore  v.  Buckham,   73 
Moore  v.  Cooke,  608,  841 
Moore  v.  Ellsworth,  463,  835 
Moore  v.  Frankenfield,  401 
Moore  v.  Hazelwood,  866 
Moore  v.  Hill,  605 
Moore  v.  Hunter,   174 
Moore  v.  Johnston,  260,  337 
Moore  v.  Lanham,  356 
Moore  v.  MeKie,  402 
Moore  v.  Merrill,  263,  387 
Moore  v.  Munn,  559,  567 
Moore  v.  Neil,  109 
Moore  v.  Rake.  519,  529 
Moore  v.  Taylor,  772 
Moore  v.  Vance,  59 
Moore  v.  Vail,    356,    360,    362,    367 

368 

Moore  v.  Vogel,  473" 
Moore  v.  Weber,  353,  437 
Moore  v.  Williams,     708,     718      720 

728,    736,    781 
Moore  v.  Wingate,   563 
Moot  v.  Bus.  M.  Asso.,  167,  726,  752 

793 
Morange  v.  Morris,    15,   36,   204,   794, 

812 
More  v.  Smedburgh,     184,     186,     616, 

695,  792,  794 

Moredock  v.  WTilliams,  608,  841 
Morehouse  v.  Heath,  286 
Moreland  v.  Atchinson,  239,  683,  859, 

873,  875 

Moreland  v.  Metz,  323,  391,  414 
Morenhout  v.  Barron,  402 
Morgan's  Appeal,  116 
Morgan  v.  Boone,  506 
Morgan  v.  Bouse,   120 


Morgan  v.  Brast,  827 

Morgan  v.  Famed,   115 

Morgan  v.  Giendy,  852 

Morgan  v.  Han.  &  St.  J.  R,  Co.,  36.3, 

367,  373 
Morgan  v.  Morgan,     492,     692,     716, 

721 

Morgan  v.  Muldoon,  424 
Morgan  v.  Ramsey,    129 
Morgan  v.  Scott,  787,  798 
Morgan  v.  Shaw,  818 
Morgan  v.  Smith,    34,    73,    302,    308, 

326,  469 

Morgan  v.  Stearns,  73 
Morley  v.  Cook,  25 
Morris  v.  Balkham,  129 
Morris  v.  Coleman,  804 
Morris  v.  Gentry,  106 
Morris  v.  Goodwin,   793 
Morris  v.  Ham,  443 
Morris  v.  Kearsley,  28 
Morris  v,  McMullen,   738,  747,   847 
Morris  v.  McNull,  797 
Morris  v.  Mowatt,  88,  731 
Morris  v.  Phelps,   260,   410,   412,   538 
Morris  v.  Rowan,   415,   417,   422,   420 
Morris  v.  Terrell,  173 
Morris  v.  Whitcher,  452 
Morrison  v.  Arnold,  715 
Morrison  v.  Beckwith,    838,    841,    847 
Morrison  v.  Brand,  788 
Morrison  v.  Collier,  557,  567 
Morrison  v.  Caldwell,  652 
Morrison  v.  Faulkner,  74 
Morrison  v.  Lods,  235 
Morrison  v.  McArthur,   258 
Morrison  v.  Morrison,  339 
Morrison  v.  Underwood,  537 
Morrison  v.  Waggy,  732 
Morrison  v.  Whitesides,  545 
Morrison  v.  Wilson,  332.  545 
Morrow  v.  Rees,  622,  680 
Morrow  v.  Wessell,  83 
Morse  v.  Elmendorf,  487,  492,  864 
Morse  v.  Royal,  187,  191 
Morse  v.  Shattuck,  402 
Mortlock  v.  Butler,  491,  495.  692 
Morton  v.  Ridgeway,    414.    698,    702, 

703 

Morton  v.  Willborn,   137 
Moseley  v.  Hunter,    281,   289.    318 
Moser  v.  Cochran,  707.  710.   749,  772 
Moses  v.  McFerlan,   122,  653 
Moses  v.  Wallace,  492,  494 
Moskowitz  v.  Homberger,  771 
Moss  v.  Davidson,   477,   703,   798 
Moss  v.  Hanson.  672.  805 
Mott  v.  Ackerman,  815 
Mott  v.  Mott.  738,  767,  826 
Mott  v.  Palmer,  259 
Moulton  v.  Chaffee,   20 


TABLE    OF    CASES. 


Ivii 


[REFERENCES  ARK  TO  PAGES.] 


Moulton  v.  Edmonds,   161 

Mover  v.  Shoemaker,  034,  070 

Mudd  v.  Green.  633 

Muir  v.  Berkshire,  136,  137 

Muir  v.  Craig,  140 

Muller  v.  Palmer,  811 

Mailings  v.  Trinder,  712 

Mullin  v.  Atherton,  127 

Mullin  v.  Boggs,  60 

Mullins  v.  Aikin,  728,  762,  765 

Mullins  v.  Bloomer,  613 

Mullins  v.  Jones,  239,  605 

Mullins  v.  Porter,  755 

Mullreed  v.  Clark,  865 

Mumford  v.  Pearce,  506,   756,   758 

Munday  v.  Vail,  94,  97 

Munro  v.  Long,  476,  477 

Munroe  v.  Pritchett,    235,    251,    252, 

253 

Murdock  v.  Gilchrist,   452 
Murphin  v.  Scoville,  20,  35 
Murphree  v.  Dogan,  507 
Murphy  v.  Jones,  444 
Murphy  v.  Lockwood,    143,    145 
Murphy  v.  Price.   157,  360 
Murphy  v.  Richardson,  598,  668,   671 
Murray  v.  Ellis,  668,  710,  718,  735 
Murray  v.  Hanvay,     718,     720,     728, 

731 

Murray  v.  Palmer,  701 
Murray  v.  Sells,  565 
Murrell  v.  Goodyear,  506,  798 
Muskingum  Val.  T'pike  v.  Ward,  45 
Myers  v.  De  Meier,  800.  802 
Mvers  v.  Broadbeck,   323 
Myers  v.  Markham,   47 
Mygatt  v.  Coe,  262,  311,  38S 

N. 

Nabours  v,  Cocke,   859 

Naglee  v.  Ingersoll,  434 

Napier  v.  Elam,  244,  245 

Nash  v.  Ash  ton,  440 

Nash  v.  Palmer,  351,  353 

Nash  v.  Spofford,  542 

Nathan  v.  Morris,  776 

Nathans  v.  Steinmayer,  460 

Nat.  Fire  Ins.  Co.  v.  McKay,  455 

Naylor  v.  Winch,  869,  871 

Nebe,  In  re,  70 

Needham  v.  Salt  Lake  City.  116 

Neel  v.  Carson,   137 

Neel  v.  Hughes,  49 

Neel  v.  Prickett,  602,  604 

Neeson  v.  Bray,  341 

Negley  v.  Lindsay,  194,  614 

Neher  v.  Brunckman,   789 

Nelms  v.  Prewitt,  455,  836 

Nelson  v.  Jacobs,  738 

Nelson  v.  Hamilton  Co.,  683 

Nelson  v.  Matthews,  20,  399 


Nelson  v.  Harwood,  514 

Nelson  v.  Owen,  842 

Nelson  v.  Russell,  767 

Nelthorp  v.  Howgate,  500 

Nerhooth  v.  Althotise,  553 

Nesbit  v.  Brown,  387,  394 

Nesbit  v.  Campbell,  469 

Nesbit  v.  Nesbit,  387 

Nesbit  v.  Miller,  203 

Newark  Sav.    Inst.    v.   Jones,   20,   21, 

146,    196 

New  Barb.  Bridge  Co.  v.  Vreeland,  20 
Newberry  v.  French,   36,   626,   731 
Newberry  v.  Ruftin,  4 
Newbold  v.  Peabody      Heights,       196, 

308.  452 
New  Brunswick  R.  Co.  v.  Conybeare. 

236 

Newcomb  v.  Bracket,    15 
Newcomb  v.  Presbrey,  332 
Newcomber  v.  Brooks,   107 
Newell  v.  Turner,   193 
Newman  v.  Samuels,  64 
Newnan  v.  Maclin.  625,  759,  827 
Newsom  v.  Davis,  764 
Newsom  v.  Graham,   464 
Newsom  v.  Harris,  214 
Newsom  v.  Thompson,  45 
Newton  v.  Foster.  456 
N.  Y.  Life  Ins.  Co.  v.  Gilhooly.    728 
N.  Y.  Life  Ins.  Co.  v.  Lord,   787 
N.  Y.  Sec.   &   Tr.    Co.    v.    Schomberj;, 

759 

N.  Y.  Steam  Co.  v.  Stern,  742 
Neyland  v.  Neyland.  473 
Nichol  v.  Nichol,   199 
Nicholas  v.  Jones,  156 
Nichols  v.  Alexander,  535 
Nichols  v.  Corbett,  29 
Nichols  v.  Dissler,   130 
Nichols  v.  Freeman,  215 
Nichols  v.  Walters,   271,   272,   307 
Nicholson  v.  Caress,  560.  563 
Nicholson  v.  Condon,  715 
Nicholson  v.  Sherard,  508 
Nicholson  v.  Wadsworth,     483,     615, 

694 

Nickles  v.  Hastings,   121 
Nicol  v.  Nicol,  244 
Nicoll  v.  Carr,    622,    695,    707,    7^0r 

783 

Nicoll  v.  Mason,  568 
Nieto  v.  Carpenter,  543 
Niles  v.  Harmon,  648 
Nind  v.  Marshall,  339 
Nixon  v.  Carco,  550 
Nixon  v.  Hyserott,  155 
Nodine  v.  Greenfield.   750.   S04 
Noell  v.  Gill.  557 
Noke  v.  Awder,  386,  388 
Nokes  v.  Lord  Kilmorey,  813 


Iviii 


TABLE   OF    CASES. 


[REFERENCES   ABE  TO   PAGES.] 


Nolan  v.  Felton,  404 

Noojin  v.  Carson,  626 

Noonan  v.  Illsley,  535,  538,  634 

Noonan  v.  Lee,  361,  443,  637,  649 

Norgren  v.  Edson,   130 

Norman  v.  Norman,    121    865,   867 

Norris  v.  Evans,  472 

Norris  v.  Kipp,  237,  434,  435 

N.   Pac.   R.  Co.   v.   Montgomery,   356, 

357,  417 

North  ridge  v.  Moore,  220,  224 
Norton  v.  Babcook,  291,  321,  405 
Norton  v.  Colgrove,  315 
Norton  v.  Herron,  156 
Norton  v.  Jackson,  443,  471 
Norton  v.  Marten,  873 
Norton  v.  Neb.  L.  &  Tr.  Co.,  86,  87 
Norton  v.  Young,  697 
Nosier  v.  Hunt,  273,  445 
Nott  v.  Ricard,  29 
Nouaille  v.  Flight,  30,  724,  825 
Nowler  v.  Coit,   138 
Nowlin  v.  Pyne,  561,  563 
Noyes  v.  Johnson,  24,  740,  741 
Noyes  v.  Phillips,  231 
Nugent  v.  Priebatsch,  574 
Nungesser  v.  Hart,  295 
Nunnally  v.  White,  377,  521 
Nutting  v.  Herbert,     271,     391,     402, 

403 
Nyce  v.  Obertz,  300,  321 

0. 

Cakes  v.  Buckley,   17,   207 

Oakey  v.  Drummond,  446 

O'Bannon  v.  Paremour,  519 

O'Beirne  v.  Buller,  488 

Obernyce  v.  Obertz,   831 

Oberthier  v.  Stroud,   119,   120 

O'Connell  v.  Duke,  337,  866 

O'Connor  v.  Hudgins,   739,   744 

O'Ferrall  v.  Simplot,  72 

Officer  v.  Murphy,  695,  697,  700 

Ogburn  v.  Whitlow,  474 

Ogden  v.  Ball,  273.  274,  363,  412 

Ogden  v.  Yoder,  853 

Ogilvie  v.  Hall,  353 

Ohio     &   Miss.   R.    Co.   \.    McCarthy, 

694 
Ohling  v.  Luitjens,      630,     638,     678, 

855 

O'Kane  v.  Kiser,  774 
O'Kelly  v.  GhoLston,  137 
Oldfield  v.  Stevonson.    444,    459,    844 
Oliver  v.  Bush.  334,  356 
Oliver  v.  Dix,  807 
Oliver  v.  Hallam,  819 
Oliver  v.  Love,  270 
Oliver  Min.  Co.  v.  Clark,  653 
Oliver  v.  Piatt,  653 
O'Meara  v.  McDaniel,  273 


Omerod  v.  Hardman,  817 

O'Neill  v.  Douthett,  598,  788 

O'Neill  v.  Vanderberg,  542 

O'Neill  v.  Van  Tassell,  303,  779 

Onions  v.  Tyrer,  871 

Ontario  Bank   v.   Lansing,    121.    123 

O'Reilly  v.  King,  709,  718,  724,  757 

Orendorff  v.  Tallman,   687,   857 

Ormsby  v.  Terry,  79,  81 

Orme  v.  Boughton,   14,  258 

Ormsby  v.  Graham,  480.  482 

Osbaldiston  v.  Askew,   730,   732,   733 

Osborn  v.  Dodd,  615,  695 

Osborne  v.  Atkins,  311,  313 

Osborne  v.  Breman,  820,  826 

Osborne  v.  Harvey,  28 

Osborne  v.  McMillan,  157 

Osborne  v.  Nicholson,  354 

Osborne  v.  Rowlett,  714,  722 

Osburn  v.  Pritchard,  335,  356 

Osgood  v.  Franklin,  692 

Osterbury  v.  Union  Trust    Co.,    142 

Osterhout  v.  Shoemaker,  552 

Osterman  v.  Baldwin,  120 

Oswald  v.  Sproehlne,  564 

Ott  v.  Sprague,  545 

Ottinger  v.  Strasburger,  -     738.       739, 

740,  742 

Outlaw  v.  Morris,  698 
Overhiser  v.  McCollister,    271,    642 
Overly  v.  Tipton,  205 
Overstreet  v.  Dobson,  295 
Owen  v.  Brookport,  519 
Owen  v.  Norris,  206 
Owen  v.  Pomona  L.  W.   Co.,   193 
Owen  v.  Thomas,  356,  363,  436 
Owens  v.  Cowan,  798 
Owens  v.  Rector,  235,  633 
Owens  v.  Salter,  469,  509 
Owings  v.  Baldwin,  731,  732 
Owings  v.  Thompson,  20 

P. 

Pack  v.  Gaither,   480 

Packard  v.  Usher,  167 

Page  v.  Adam,  31 

Page  v.  Brown,   153 

Page  v.  Greeloy,  24,   191,  724.   741 

Page  v.  Lashley,  299 

Paget  v.  Melch'ior.   760,  767,   787 

Paine  v.  Miller,  161 

Painter  v.  Henderson,  172 

Palmer  v.  Chandler,  406 

Palmer  v,  Locke,  714 

Palmer  v.  Morrison,  769 

Palmer  v.  Richardson,    185,    189,    817 

Palmerton  v.  Hoop,   117 

Pangborn  v.  Miles,  598,  774,  786,  787 

Papin  v.  Goodrich,  41,  164 

Parham  v.  Parham,  558 


TABLE   OF    CASES. 

[REFERENCES    ABE   TO   PAGES.] 


lix 


Parham  v.  Randolph,    235,    246,    251, 

827,  855 

Paris!)  v.  Whitney,  301 
Park  v.  Bates,  360,  366,  398,  428 
Park  v.  Johnson,  693,  704,  732,  780 
Parker  v.  Baker,  59 
Parker  v.  Brown,  255,  256,  271 
Parker  v.  Chadwick,  396 
Parker  v.  Culbertson,  444 
Parker  v.  Dunn,  364 
Parker  v.  Goddard,  132 
Parker  v.  Hart,  458 
Parker  v.  Jones,  519 
Parker  v.  Kane,   99 
Parker  v.  McAllister,  34,  206, 
Parker  v.  Parker,  281,  854 
Parker  v.  Parmele,  33 
Parker  v.  Porter,  725,  762 
Parker  v.  Richardson,   350,  438 
Parker  v.  Starr,  571 
Parker  v.  Teas,  575 
Parkins  v.  Williams,  847 
Parkinson  v.  Sherman,  458,  462,  469, 

637 
Parks  v.  Brooks,   625,  690,   692,   696, 

777,  789,  843 
Parks  v.  Jackson,   732 
Parlin  v.  Stone,  563 
Parmly  v.  Head,  707,  710 
Parr  v.  Lovegrove,  737 
Parsons  v.  Gilbert,  801 
Parsons  v.  Smith,  587 
Partridge  v.  Hatch,  409 
Partridge  v.  Patton,  550 
Paslay  v.  Martin,  817 
Pate  v.  Mitchell,  34,  261,  509 
Pate  v.  McConnell,  794 
Paterson  v.  Long,  30,  831 
Paton  v.  Brebner,  495,  825,  830 
Pa  ton  v.  Rogers,  491 
Patrick  v.  Leach,  392 
Patrick  v.  Roach,  698,   702 
Patten  v.  Fitz,  306 
Patten  v.  Stewart,  194,  243,  650,  695 
Patterson  v.  Arthur,   307,   309,   354 
Patterson  v.  Carneal,  50 
Patterson  v.  Dwinel,  552 
Patterson  v.  Fisher,  553 
Patterson  v.  Goodrich,  36 
Patterson  v.  Long,  30,  831 
Patterson  v.  Pease,   528 
Patterson  v.  Stewart,  415 
Patterson  v.  Sweet,  302 
Patterson  v.  Taylor,  639 
Patterson  v.  Yancey,  293,  327 
Patton  v.  Camplin,  477 
Patton  v.  England,  195,  462,  685 
Patton  v.  Kennedy,  353,  430,  435 
Patton  v.  McFarlane,  356,  364 
Patton  v.  Schneider,  338 
Patton  v.  Taylor,  443,  839,  857 


Patton  v.  Thompson,  106 

Paul  v.  Kenosha,  860 

Paul  v.  Witman,  365,  379,  429 

Payne  v.  Atterbury,  625 

Payne  v.  Cabell,  645 

Payne  v.  Echols,   150 

Payne  v.  Markle,  741 

Paxson  v.  Lefferts,  329 

1'axton  v.  Sterne,  137 

Peabody  v.  Brown,  45 

Peabody  v.  Phelps,  661,  686,  687 

Peak  v.  Gore,  784,  797 

Pearsoll  v.  Chapin,  234,  622,  680,  683 

Pearsoll  v.  Frazer,  208 

Pearson  v.  Ford,  311,  318 

Pearson  v.  Davis,  271 

Pearson  v.  Seay,  589 

Pease  v.  Christ,  298,  299 

Feay  v.  Capps,  615,  715 

Peay  v.  Wright,  686 

Peck  v.  Hensley,  364 

Peck  v.  Houghtaling,    275,    277,    432, 

435 

Peck  v.  Jones,  669 
Peckham  v.  Stewart,  763 
Peden  v.  Moore,  443,  463 
Peebles  v.  Stephens,     616,     695,     699, 

702,  855 

Peeler  v.  Levy,  499,  500 
Peers  v.  Barnett,  460,  606,  742,  852 
Peers  v.  Lambert,  827 
Peet  v.  Beers,  512 
Pegler  v.  White,  711,  712 
Pell  v.  Pell,  765 
Pelletreau  v.  Jackson,  544 
Pena  v.  Armstrong,  575 
Pence  v.  Duval,  263,  353,  391,  434 
Pence  v.  Gabbert,  357,  385,  415 
Pendleton  v.  Button,  72 
Penfield  v.  Clarke,  36 
Penn  v.  Preston,  668 
Pennington  v.  Clifton,  140 
Pennsylvania  v.  Sims,  668 
Penna.  Min.  Co.  v.  Thomas,  165 
People  v.  Gilon,  295,  298 
People  v.  Globe  Ins.  Co.,  716 
People  v.  Life  Ins.  Co.,  767 
People  v.  Open  Board,  etc.,  716,  801, 

810 

People  v.  Sisson,  444 
People  v.  Society,  543 
People  v.  Stock  Brokers'  Building 

Co.,  722 

People's  Sav.  Bank  v.  Alexander,  305 
Peo.  Sav.  Bank  v.  Lewis,  525 
Poo.  Sav.  Bank  v.  Parisette,  497,  498 
Pepper  v.  Rowley,  444 
Poqups  v.  Mosby,  589,  611 
Poniful  v.  Hurd,  638 
Perkins  v.  Bamford,  446 
Perkins  v.  Dickinson,  558 


Ix 


TABLE   OF    CASES. 


[REFERENCES   ARE  TO  PAGES.] 


Perkins  v.  Ede,  827 

Perkins  v.  Fairfield,  92 

Perkins  v.  Hadley,  215,  379,  502,  625, 

702 

Perkins  v.  White,  78 
Perkins  v.  Williams,  453 
Perrot  v.  Perrot,  871 
Perry  v.  Adams,   138 
Perry  v.  Boyd,  695,  856 
Perry  v.  William,  141 
Perry  v.  Williamson,  301 
Fershing  v.  Canfield,  205,  619 
Personneau  v.  Blakely,  560 
Peterman  v.  Laws,   132 
Peters  v.  Anderson,  511 
Peters  v.  Bouvien,  268,  458 
Peters  v.  Delaplaine,  831 
Peters  v.  Farnsworth,   155 
Peters  v.  Grubbs,  339,  354,  376 
Peters  v.  McKeon,  213,  216,  223,  224, 

391 

Peters  v.  Meyers,  294,  297 
Peterson  v.  McCulloch,  445 
Petrie  v.  Folz,  370,  371,  402 
Pettys  v.  Marsh,  589 
Pfirrman  v.  Wattles,  134,  446 
Phelps  v.  Decker,  339        fc 
Phelps  v.  Kellogg,  531 
Phelps  v.  Phelps,  52 
Phelps  v.  Sawyer,  361 
Phillbrook  v.  Emswiler,  657 
Phillips  v.  Coffee,  127 
Phillips  v.  Cooper,  424 
Phillips  v.  Day,  743,  749 
Phillips  v.  Evans,  354 
Phillips  v.  Herndon,  36,  148,  212 
Phillips  v.  O'Neal,  624 
Phillips  v.  People,  59 
Phillips  v.  Reichert,  392,  397,  410 
Phillips  v.  Ruble,  61 
Phillips  v.  Scott,  673 
Phillips  v.  Smith,  394,  401 
Phillips  v.  Stanch,    497 
Phillips  v.  WTalsh,  75,  76 
Phillipson  v.  Gibbon,  819 
Phipp  v.  Childs,  724 
Pickitt  v.  Loggon,   147 
Piedmont  Coal  Co.  v.  Green,  606 
Pierce  v.  Johnston,  263 
Pierce  v.  Milwaukee  R.  Co.,  440,  517, 

540 

Pierce  v.  Nicol,   798,  821 
Pierson  v.  Armstrong,   50 
Pierson  v.  Doe,  50 
Pike  v.  Galvin,   263,   550 
Pike  v.  Goodnow,  526 
Piland  v.  Taylor,  58 
Pilcher  v.  Prewitt,   648,  650 
Pilcher  v.  Smith,  625 
Pillsbury  v.    Mitchell,    263,    311,   318, 

322,  326 


Pincke  v,  Curtis,   193 

Pinkston  v.  Hine,  229,  274 

Pino  v.  Beckwith,  587,  621 

Pintard  v.   Martin,  649 

Piper  v.  Elwood,  141 

Pipkin  v.  James,  587,  807,  814 

Pitcher  v.   Livingston,   150,  270,  271, 

360 
Pitkin  v.  Leavitt,  360,  421,  428,  431, 

434 

Pitman  v.  Connor,   284,   335 
Planer  v.  Eq.  Life  Ins.  Co.,  501,  502 
Platt  v.  Gilchrist,  449,  458,  637,  848 
Platt  v.  Newman,    773 
Platte  Land  Co.  v.  Hubbard,  588 
Playter  v.  Cunningham,  351,  361 
Plowman  v.  Shidler,   525 
Plummer  v.  Rigdon,   214 
Plummer  v.  Russell,  48 
Point  Street  Iron  Works  v.  Simmons, 

151 

Poke  v.  Kelly,  589,   667 
Polk  v.  Stevenson,   167 
Polk  v.  Sumter,  49,  778 
Pollard  v.  Dwight,   256,    258,   259 
Pollard  v.  Rogers,    194 
Pollock  v.  Speidel,   519 
Pollock  v.  Wilson,   704 
Pomeroy  v.  Burnett,  315,  444,  469 
Pomeroy  v.  Drury,  20,  36 
Pomeroy  v.  Fullerton,   487 
Pomeroy  v.  Partington,   417 
Pool  v.  Ellis,    138,   139 
Poole  v.  Hill,   200 
Poole  v.  Shergold,   826 
Pope  v.  Garland,  21,  30 
Pope  v.  Simpson,  134 
Pope  v.  Thrall,  727,  740,  791 
Pope  v.  Wray,  613 
Poor  v.  Boyce,   114,   117 
Porter  v.  Bradley,   298,    323 
Porter  v.  Cook,  652 
Porter  v.  Hill,  538 

Porter  v.  Noyes,  33,  35,  300,  362,  777 
Porter  v.  Scobie,   608 
Porter  v.  isullivan,  552 
Porter  v.  Titcomb,  696 
Porterfield  v.  Payne,  720 
Portman  v.  Mill,  819 
Post  v.  Bernheimer,  783 
Post  v.  Campau,  298 
Post  v.  Leet,  82,   121,  858 
Post  v.  Weil,  776,  777 
Potter  v.  Kitchers,   279 
Potter  v.  Parry,  711 
Potter  v.  Taylor,   287 
Potter  v.  Tuttle,    151 
Potwin  v.  Blasher,  370,  418,  459 
Poulet  v.   Hood,   154 
Poulson  v.  Ellis,  201 
Pounsett  v.  Fuller,  212 


TABLE   OF    CASES. 
[INFERENCES  AKE  TO  PAGES.] 


Ixi 


Powell  v.  Conant,  724 

Powell  v.  Edmonds,   32 

Powell  v.  Lyles,   337 

Powell  v.  Matyr,   820,  821 

Powell  v.  Morrissey,   575 

Powell  v.  Munson,  300 

Powell  v.  Powell,  733 

Powell  v.  So.   Wales   R.   Co.,   830 

Power  v.  Standish,  516 

Powers  v.   Bryant,  69 

Poyas  v.  Wilkins,  476 

Poyntell    v.    Spencer,    364,    3G5,    667, 

673 

Pratt  v.  Campbell,  488,  822 
Pratt  v.  Eby.   712,   739,   742 
Pratt  v.  Pratt,   539,  540 
Preiss  v.  Le  Poidevin,  331,  383 
Preissinger  v.  Sharp,  716 
Presbrey  v.  Kline,  484.  726,  798,  803, 

804 

Prescott  v.  Hayes,  60 
Prescott  v.  Hobbes,   267 
Prescott   v.   Trueman,    257,    21)0,    315, 

318,  322,   775,  831 
Prescott   v.   Williams,   302 
Presser  v.  Hildebrand,   497 
Preston  v.  Breedlove,   472 
Pfeston  v.   Fryer,  81,  84,  87 
Preston  v.  Harrison,   140 
Veston  v.  Walker,   603,   615 
Veston  v.  Whitcomb,   36 
'reston  v.  Williams,    574 
'restwood  v.  McGovern,  360,  363,  434 
>evost  v.  Gratz,  443,  639 
'rewitt  v.  Graves,   723,   765 
'rewitt  v.  Kenton,    424 
Price  v.  Ayres.   845,   852 
Price  v.  BJount,  472,  473 
Price  v.  Boyd,   140 
Price  v.  Browning,    185;   607 
Price  v.  Hubbard,   447 
Price  v.  Johnson,  257 
Price  v.  Real   Estate  Assn.,   117 
Price  v.  Strange,   711 
Primm  v.  Wise,    808 
Pringle  v.  Spaulding,   211 
Prinple  v.  Witton.  277,  356 
Prior  v.  Loeb,  541 
Pritchard  v.  Atkinson,   306 
Pritcharcl  v.  bmith,    370 
Pritchett  v.  Redick,   357,   370,   37S 
Prosser  v.  Watts,  715,  737 
Prothro  v.  Smith,  813 
Prov.  Life  N.  Co.  v.  Seide,  263 
Prov.  Loan  &  Tr.  Co.  v.  Mclnto«h.  686 
Prout  v.  Gibson.  606 
Prout  v.  Roberts,   244,   687,  855 
Pry  v.  Pry,  51 

Pryse  v.  McGuire.  242,  245,  252,  445 
Puckett  v.   McDonald,   115,  589,   650 
Pugh  v.  Brittain,  571 


Pugh  v.  Chasseldine,  35,   148 

Pugh  v.  Mayo,   525 

Pumpelly  v.  Phelps,  217,  225,  227,228 

Purcell  v.  Heeney,  447 

Purvis  v.  Rayer,  20,  22,  710 

Pusey  v.  Desbourne,  871 

Puterbaugh    v.    Puterbaugh,    20,    213, 

227,  228 

Putnam  v.  Ritchie,    139 
Putnam  v.  Westcott,  587 
Pyle  v.  Gross,  345 
Pyrke  v.  Wadding!)  am,  708,  712,  714, 

721,  722 

Q. 

Quarles  v.  Campbell,  115 
Quick  v.  Taylor,  308 
Quimby  v.  Lyon,  205 
Quivey  v.  Baker,  519,  545,  547 


Rebon  v.  Risnikoff.  597 

Radcliff  v.   Ship,   363,   431 

Rader  v.  Neal,   104,  152 

Radford  v.  Willis,  713,  714 

Raftery  v.  Easeley,  300 

Ragan  v.   G^ither,  731 

Raines  v.  Callaway,  433 

Raines  v.   Walker.  519 

Rainey  v.  Hines,  317 

Ralston  v.  Miller,  461,  849 

Ramirez  v.   Barton.  855 

Ramsden  v.  Hurst,  30 

Ramsey  v.  Smith,  564 

Ramsour  v.  Shuler,  506,  564 

Randall  v.  Albertis,  353 

Randall  v.  Lower,  525,  526 

Randall  v.  Mallett,   315 

Randolph  v.  Kiriney,   263,   387 

Randolph  v.  Meeks,  358,  360 

Ranelagh  v.   Hayes,  516 

Rankin  v.  Maxwell,  492 

Ranney  v.  Smith,   564 

Ranson  v.  Shuler,   835 

Rantin  v.  Robertson,  351 

Rash  v.  Jenne,  396 

Rashall   v.    Ford,   250 

Rathbun   v.   Rathbun,   522 

Raudabaugh  v.  Hart.  200 

Ravenel  v.   Ingram.  378,  381 

Rawley  v.   Beaman.   69 

Rawlings  v.  Adams,  213 

Rawlins  v.  Timl>erlake,   445,  838,  847 

Ray  v.  Detchon,   137 

Ray  v.  Pease,   50 

Ray  v.  Virgin,  113 

Raymes  v.   Clarkson,  44 

Raymond  v.  Holdon.  542 

Raymond  v.  Raymond,    256,   283 

Raymond  v.  Squire,  264 

Raynor  v.  Lyon,  777 


TABLE   OF    CASES, 


[REFERENCES    ARE   TO   PAGES.] 


Rea  v.  Minkler,  335,  360,  375,  436 

Read  v.  Fogg,  547,  550 

Read  v.  Walker,  203,  625,  696,  855 

Reading  v.  Gray,  315 

Reagle  v.   Dennis,  284,  288 

Real  T.  Hollister,   363 

Real  Est.  Corp.  v.  Harper,  296 

Ream  v.  Goslee,  299 

Reardon  v.   Searcy,   127 

Reasoner    v.     Edmundson.     260,    315, 

363,  371 

Reck  v.  Clapp,  182 
Recohs  v.  Younglove,  255,  412 
Rector  T.  Higgins.   315 
Rector  v.  Price,   826 
Redding  v.  Lamb,  347,  465 
Reddington  v.  Henry,  595 
Redman  v.  Williams,   598 
Redmon  v.  Phenix  Ins.  Co.,  292 
Redwine  v.  Brown,  263,  350,  381,  383 
Recce  v.  Haymaker,  759 
Reed  v.  Crosthwaite,   140 
Reed  v.  Hatch,   338 
Reed  v.  Noe,  731,  826,  827 
Reed  v.  Pierce,  318 
Reed  v.  Reed,   758 
Reed  v.  Root,  561  % 

Reed  v.  Sycks,   452 
Reed  v.  Tioga   Mfg.  Co.,  45«?   834 
Reeder  v.   Craig,  519 
Reese  v.  Gordon,  463,  649 
Reese  v.  Kirk,  13 
Reese  v.  McQuilkin,  392,  433 
Reese  v.  Smith.  517,  537 
Reeves  v.  Dickey,   607,   609,   800.   806 
Reeves  v.  Downs,  616 
Refeld  v.  Woolfolk,  651 
Regney  v.  Coles,   727,   755 
Regney  v.  Small,    131 
Reid  v.  Sycks,  287 
Reilly  v.  Burton,    137 
Reilly  v.  Smith,  497 
Reiner's  Appeal,   112 
Remillard  v.   Prescott,  564.  568 
Remington  v.  Hornby,  148 
Remington  v.  Palmer,   451,   453 
Remy  v.  Olds,  205 
Reniek  v.  Renick,  849 
Renner  v.  Marshall,   845 
Renshaw  v.  Gans,  506,  512.  667 
Resser  v.  Carney,  526 
Reswick  v.   Campbell,   810 
Reuter  v.  Lane,  676 
Revol  v.  Stroudback,  738,   771 
Rex  v.  Creel,  346,  360 
Rex  v.  Holland,  599 
Reydell  v.  Reydell,  733 
Reynolds  v.  Borel,  729 
Reynolds  v.  Clark,  497 
Reynolds  v.  Cleary,  730 
Reynolds  v.  Harris,   127 


Keynolds  v.  Nelson,  578 
Reynolds  v.  Smith,  809 
Reynolds  v.  Strong,  706,  718,  760, 

810 

Reynolds  v.  Vance,  827 
Rhea  v.  Allison,   702 
Rhea  v.  Swain,  416 
Rheel  v.  Hicks,  122 
Rhoads  v.  Selin,   105 
Rhode  v.  Alley,  151,  474,  664,  683 
Rhode  v.  Green,  430,  435 
Rhodes  v.  Caswell,    716 
Rhodes  v.  Ibbetson.  27 
Rhodes  v.  Wilson,  589 
Rhorer  v.  Bila,  615,  616 
Rice  v.  Barrett,   768 
Rice  v.  Burnett,   109,   113.   118 
Rice  v.  Goddard,  446,  461 
Rice  v.  Kelso,  525 
Rice  v.  Poynton.   571 
Rice  v.  Silverton,  855 
Rich  v.  Johnson,  414 
Richards  v.  Bent,  263,  292,  312 
Richards  v.  Homestead  Co.,  370,  374, 

404,  405 
Richards    v.    Knight,    712.    714,    736, 

768 

Richards  v.  Mercer,  780 
Richardson  v.  Bright,  242.  243,   246 
Richardson  v.  Butler,   117 
Richardson  v.  Dorr,  255.   315 
Richardson  v.  Eyton,   30 
Richardson  v.  Gosser,    66n.    67  3 
Richardson  v.  Jones.   715 
Richardson  v.  McDougall.    124.    141 
Richardson   v.    McKinson.     G!«9,     701, 

702 

Richardson  v.  Tobey,   303 
Richardson  v.  Williams,  8:>9 
Richmond  v.  Ames,  301,   318,   322 
Richmond  v.  Gray,   189,  748,  799,805 
Richmond  v.  Koenig,   781 
Richmond  v.  Marston,    1"0 
Richmond  v.  Robinson,    496 
Richmond  v.  Voorhees,  Cl 
Ricker  v.  Pratt,  836,  843 
Rickert  v.  Snyder,  277,  323.  352.  362, 

422,  433* 

Ricketts  v.  Dickens,  330.  337,  360 
Riddell  v.  Blake,   703 
Riddle  v.  Bush,   128 
Riddle  v.  Hill,   113 
Riddleberger  v.  Mintzer.  497 
Rider  v.  Powell,  566 
Ridgeley  v.  Howard,  58 
Ridgway  v.  Gray,  830,  831 
Riesz's  Appeal,  497 
Rife  v.  Lybarger,  780,  785.  830 
Rigg  v.  Cook.  529 
Bugs  v.  Purse!!,  79,  81,  590,  708 
Riley  v.  Kepler,   111  . 


TABLE   OF    CASES. 

[REFERENCES   ARE   TO   PAGES.] 


Ixiii 


Riley  v.  Million,  121 

Rimer  v.  Dugan,   243,   251,   855 

Rinaldo  v.  Houseman,  598 

Rineer  v.  Collins,  211,  214 

Rindskopf  v.  Trust  Co.,  361 

Rinehart  v.  Rinehart,  318 

Ripley  v.  Kepler,   109 

Rippingall  v.  Loyd,  31 

Ritter  v.  Henshaw,    123,    140 

Ritter  v.  Phillips,   469 

Roach  v.  Rutherford,  189,   192,  603 

Roake  v.  Kidd,  709 

Robards  v.   Cooper,  443 

Robb  v.  Irwin,   95 

Robb  v.  Montgomery,  35,  47;  611,804 

Robbins  v.  Battlehouse   Co.,   556 

Robbins  v.  Mayer,   560 

Roberts  v.  Bassett,  35,  36 

Roberts  v.  Levy,   262,    268,   296,   301, 

308 

Roberts  v.  Lovejoy,  492 
Roberts  v.  McFadden,   17,  392,  719 
Roberts  v.  Stowers,    95,    128 
Roberts  v.  Taliaferro,   559 
Roberts  v.  Wolbright,   444,  6:57 
Roberts  v.  Wyatt,  31,   165,  4S2,  503 
Robertson  v.  Bradford,  115,   138 
Robertson  v.  Gaines,   519 
Robertson  v.  Hogsheads,   605.    681 
Robertson  v.  Lemon,   391,  417,   421 
Robinson  v.  Bierce,   319 
Robinson  v.  Brakewell,  221,   6GO 
Robinson  v.  Douthit,    519 
Robinson  v.  Galbreath,   858 
Robinson  v.  Hardman,   229 
Robinson  v.  Heard,  214 
Robinson  v.  Maudlin,   61. 
Robinson  v.  Murphy,   297 
Robinson  v.  Page,   581 
Robinson  v.  Redman,   93 
Robinson  v.  Ryan,  137,  138 
Hobison  v.  Robison,  641 
Roche  v.  O'Brien,  187 
Rockfellcr  v.  Donelly,  282 
Rocksell  v.  Allen,  123 
Rockwell  v.  Wells,  460 
Rodgers  v.  Olshoffsky,  620,  667,  684 
Rodman  v.  Williams,  598 
Roebuck  v.  Dupuy,  364,  370 
Roehl  v.  Haumesser,   864 
Roehl  v.  Pleasants,    112,    113 
Rogers  v.  Abbott,  570 
Rogers  v.  Borchard,   36 
Rogers  v.  Clemmans,    116 
Rogers  v.  Colt,  682 
Rogers  v.  Daily,  406 
Rogers  v.  Golson,    401 
Rogers  v.  Horn,  86,  475 
Rogers  v.  Norton,  684 
Rogers  v.  Place,   458,   844 
Rogers  v.  Waterhouse,  712 


Rohr  v.  Kindt,  36,  219.  492,  503 

Roland  v.  Miller,  667,  668 

Rolfes  v.  Russell,  253 

Roller  v.  Ettinger,  182,  506,  798 

Rollins  v.  Henry,    120 

Rolph  v.  Crouch,  408 

Romig  v.  Romig,  35 

uomilly  v.  James,  717,  718 

Rook  v.  Rook,   403 

Rooney  v.  Koenig,  523 

Roots  v.  Dormer,  826 

Rose  v.  Calland,   782 

Rose  v.  Neuman,  60 

Rose  v.  Schaffner,   385 

Roseman  v.  Conovan,  238 

Rosenberger  v.   Keller,  324,  851 

Rosenthal  v.  Griffin,  63 

Ross  v.  Boards,  495,  831 

Ross  v.  Davis,  335,  626 

Ross  v.  Dysart,   343,  354 

Ross's  Appeal,  670 

Roswall  v.  Vaughan,  649,  686 

Roszell   v.   Roszell,  566,   573 

Rotan  v.  Hays,  281 

Rounds  v.  Baxter,  589,  613 

Roussel  v.  Lux,  776 

Rowland  v.  Dowe,  211 

Rowe  v.  Heath,  339,   422 

Rowe  v.  School   Board,  213 

Royal  v.  Dennison,  47,  73 

Royce  v.  Burrell,  346 

Royer  v.   Foster,  370,   372 

Rucker  v.  Lowther.   148,  155 

Rudd  v.  Savelli,   148 

Ruess  v.  Ewen,  740 

Ruff  v.  Gerhart,  737 

Rufncr  v.  McConnell,  280 

Ruffner  v.  McLenan,  67 

Ruggles   v.    Barton,   539 

Rundell  v.  Lakey,  296  467 

Runge  v.   Sabin,  65 

Runkle  v.  Johnson,  206 

Runnels  v.   Webber,  300 

Runyan  v.  Alersereau,  260 

Ruppert  v.  Haske,  573 

Rush  v.  Truby,  43 

Russ  v.  Alpaugh,  522,  531 

Russ  v.  Perry,   300,  346 

Russ  v.  Steele,   375 

Russ  v.  Wingate,  58,  69 

Russell  v.  Copeland,  214 

Russell  v.  Handy,    197 

Russell  v.  Hudson,  132 

Russell  v.  Shively,  796 

Rutherford  v.  Haven,   207 

Rutherford  v.  Montgomery.    349.    377 

Rutherford  v.  Stamper,    106 

Rutledge  v.  Lawrence.   213.   220.   490 

Rutledge  v.  Smith,  563,  625,  820,  821 

Ryan  v.  Dunlap,  488 

Ryan  v.  Wilson,  50 


Ixiv 


TABLE   OF    CASES. 


[BEFEBEXCES   ABE   TO   FACES.] 


Ryder  v.  Jenny,  150 

Hverson   v.   Chapman,   421,   423.   430, 

431 
Ryerson  v.  Willis,  447,  453,  458,  462 

S. 

Sable  v.  Broekmeier,  273 

Sable  v.  Maloney.    569 

Sackett  v.  Twining,   109 

Sage  v.  tiones,   311 

Sage  v.  Rannev,   611,   612 

Saint  v.  Taylor,  839 

St.  Anthony's  F.  W.  P.  Co.  v.  Merri- 

man,  565.  568 
St.  Clair  v.  Williams,  350 
St.  Louis  v.  Bissell,  321 
St.  Louis  Rei.  Co.  v.   Langley.  543 
St.  John  v.   Palmer,  361.  363 
St.  Mary's  Church   v.   Stockton,   766, 

770,  783 

Salisbury  v.  Hatcher,  806 
Salle  v. 'Light,  424 
Salmon  v.  Hoffman,   443 
Salmon  v.  Vallejo,   262,   264 
Salmon  v.  Webb,   593 
Salmond  v.  Price,   136,   141 
Saltonstall  v.  Gordon,   238,   239 
Hilton-stall  v.  Riley,   93 
Sampeyrac  v.  U.  S.,  180 
•^-.inborn  v.  Gunter,   861 
Sanborn  v,  Nockin,  496 
Sandeman  v.   McKinsie,   187 
Sanderlin  v.  Willis,  211,  604 
Sanders  v.  Brown,  293 
Sanders  v.  Hamilton,   124,  425 
Sanders  v.  Lansing,   587 
Sanders  v.  Wagner,   320,    404,    405 
Sanford  v.   Travers,   695,  865 
Sands  v.  Lynfaam,  137,  138 
Sandwich   Mfg.   Co.   v.   Zellman,   288, 

345,  523 

Sanford  v.  Bulkley,   60 
Sanford  v.  Justice,  252 
Sanford  v.  Sanford,    548 
Sanford  v.  Wheeler.  35 
Sargent  v.  Guiterson,  285,  661 
Satterfield  v.  Spier,  492 
Saulters  v.  Victory,  214.  216 
Saunders  v.  Flanniken,   376,   381 
Saunders  v.  Guille,  771 
Saunders  v.  Hamilton,   124,   425 
Saunders  v.  Pate,    119 
Savage  v.  Mason.  303 
Savings  Inst.  v.  Burdick,  566 
savings  &  Loan  Assoc.  v.  Meeks,  576 
Sawyer  v.  Hovey.  568 
Sawyer  v.  Kendall,   52 
Sawyer  v.  Sledge,   594,  627 
Sawyer  v.  Vaughan,  277 
Sawyer  v.  Wiswall,  .457 
Sawyers  v.   Cator,  344 


Sayre  v.  Mohney,  604,  C16 
Sayre  v.  Sheffield  Land  Co.,  273 
Scannell    v.    Am.    Soda    !•'.    Co.,    738, 

779,  791 

Scantlin   v.   Anderson,  411,  445 
Scates  v.  Fohn,   549 
Schaatz  v.  Keener,  567 
Schaefer  v.  Causey,  138 
Schaefer  v.  Bluinentbal,  779 
Schaeffer  v.  Bond,  133 
Schaffer  v,  Grutzmachen,  542 
Schamberg  v.  Leslie,  684 
Scheible  v.  Slagle,  375 
Schermerhorn  v.  Niblo,   707,   772 
Schermerborn   v.   Vanderbeyden,   402 
Scheu  v.  Lehning,  757,  828 
Schiffer  v.  Dietz,  14,  235,  800,  805 
Schley  v.  Baltimore,  92 
Schmidt  v.  Reed,  805 
Schnelle  Lumber  Co.  v.  Barlow,  275 
Schofield  v.  Iowa  Homestead  Co.,  265, 

268,  276,  379 

Scholle  v.   Scholle,   758,   760 
Schoonover   v.   Daugherty,  565 
Schott  v.  McFarland,  645 
Schreck  v.  Pierce,  20,  34,  482 
Schroeder  v.  Witham,  718 
Schroeppel  v.  Hopper,  695 
Schug's  Appeal,  78 
Schulenberg  v.  Harriman,  368 
Schultze  v.  Rose,  739 
Schumann  v.  Knoebel,  318,  469 
Schuylkill.   etc.,   11.   Co.   v.   Schmoele, 

351,  354,  366 

Schwartz  v.  Woodruff,   734,   799 
Schwinger  v.  Hickock,   123 
Scoffins   v.  Grandstaff,   263,  377,  381, 

545 

Scott  v.  Battle,  625,  655,  702 
Scott  v.  Beutel,   775 
Scott  v.  Bilgerry,   488 
Scott  v,  Davis,   188 
Scott  v.  Gallagher,    58 
Scott  v.  Hanson,  822 
Scott  v.  Morning,   271 
Scott  v.  Nixon,  737 
Scott  v.  Scott,  331,  432 
Scott  v.  Sharp,  818 
Scott  v.  Simpson,  732,  739 
Scott  v.  Slaughter.   650 
Scott  v.  Thorp,   808,   819 
Scott  v.  Twiss,   256 
Scribner  v.  Holmes,  304,  305 
Scripture  v.  Morris,  775 
Scriver  v.  Smith,  375 
Scudder  v.  Andrews,  462,  650 
Scudder  v.  Watt,   705,   777 
Seaburn  v.  Sutherland,  695 
Seaman  v.  Hicks,   82,  88,  736.  785 
Seaman  v.  Vawdrey,  30,  711,   713 
Seamore  v.  Harlan,  699,  703 


TABLE    OF    CASES. 


[REFERENCES    ARE    TO    PAGES.] 


Searcy  v.  Kirkpatrick,  508 

Sears  v.  Broady,  311,  433 

Sears  v.  Stinson,   410 

Seaton  v.  Barry,   667 

Seaton  v.  Booth,    826 

Seaton  v.  Mapp,   28,   30 

Sebring  v.  Mersereau,  752 

Second  Univ.  Soc.  v.  Dugan,  770 

Second  Univ.  Soc.  v.  Hardy,  70S 

Security  Bank  v.  Holmes,  345 

Sedgwick  v.  Hargrave,   707 

Sedgwick  v.  Hollenbeck,  260,  279,  352 

Seeley  v.   Howard,  207 

Seibel  v.  Purchase,  587,  801 

Seiberling  v.  Lewis,  794 

Seitzinger  v.  Weaver,  657 

Selden  v.  James,  820 

Seldner  v.  McCreery,  715.  772 

Selden  v.  Wilhans,   657,  661 

Seller  v.  Lingerman,  137 

Semple  v.  Wharton,  345,  409 

Senning  v.   Bush,  772 

Sessa   v.    Arthur,   452 

Seton  v.  Slade,  189,  193,  798,  800,811 

Settle  v.  Stephens,  681 

Seventy- third  St.  Bldg.  Co.  v.  Jencks, 

318 

Seward  v.  Willcock,  202 
Sewell  v.  Wilkins,  201 
Seymour    v.    Delancy,    692,    728,    730, 

743,  806 

Seymour  v.  Dennett,   613 
Seymour  v.  Lewis,  309 
Shackelford  v.  Hundly,  250,  252,  619, 

855 

Shackleton  v.  Sutcliffe,  30,  775 
Shacklett  v.   Ransom,   156 
Shadbolt  v.  Bassett,  469 
Shafer  v.  Wiseman,  435 
Shaffer  v.   Bolander,   127,   130 
Shaffer  v.  Green,   281,   291,  292 
Shaffer  v.  McCracken,    130 
Shaffner  v.  Grutzmachen,  542 
Shakespear  v.  Delaney,   12!) 
Shankle  v.  Ingram,  357,  360 
Shanks  v.  Whitney,  237 
Shannon  v.  Marselis,  453,  838 
Share  v.  Anderson,  657,  606 
Sharland  v.  Leifschild,  20 
Sharp  v.  Adcock,  711 
Shattuck  v.  Cunningham,  486 
Shattuck  v.  Lamb.  360 
Shaw  v.  Bisbee,  337 
Shaw  v.  Lord,  45 
Shaw  v.  Vincent,   825 
Shaw  v.  Wilkins,  215,  221.  228 
Shaw  v.  Wright,  80 
Slieard  v.  Willburn,  223 
Shearer  v.  Fowler,  654 
Shearer  v.  Ranger.   300,   831 
Shears  v.  Dusenburv.  286.  426 


Sheehy  v.  Miles,  724 

Sheets  v.  Andrews,  200,  213,  216,392 

Sheets  v.  Joyner,  339,  407,   428 

Sheffey  v.  Gardner,  311,  360,  434 

Shelby  v.  Marshall.  605 

Shelby  v.  Williams,  847 

Sheldon  v.  Newton,  95 

Sheldon  v.  Stryker,   63 

Shelley's  Case,  767 

Shelly  v.  Mikkleson,  507 

Shelton  v.  Codman,   377 

Shelton  v.  Livins,  32 

Shelton  v.  Peas,  289,  326,  371 

Shephard  v.  Carriel,  63 

Shepherd  v.  ivahle,   519 

Shephard  v.  Keatley,   29 

Shephard  v.  Little/ 402 

Shephard  v.  Mclntire.   513 

Sherman  v.  Kane,  521 

Sherman  v.  Ranger,   362 

Sherman  v.  Savery,  597 

Sherman  v.  Williams,  351,  352 

Sherwin  v.  Shakespear,   164 

Sherwood  v.  Johnson,   301 

Sherwood  v.  Landon,  636 

Sherwood  v.  \  amlenburgh,    552 

Sherwood  v.  Wilkins,   287 

Sheilds  v.  Allen,   86,   595 

Shields  v.  Bogliolo.  699 

Shiffer  v.  Deitz,   193,  238 

Shiflett  v.  Orange  Humane  Soc.,  617 

Shipp  v.  Wheless,  134,  595,  605,  616, 

695,  836 

Shirley  v.  Shirley,  625 
Shively  v.  Jones,   82 
Shively  v.  Land  Co.,   579 
Shober  v.   Dutton,   739.  742 
Shober  v.  Robinson,   425 
Shoemaker  v.  Johnson,  548 
Shontz  v.   Brown,    154,  451,  657 
Short  v.  Conlee,   63 
Short  v.  Porter,    109,   .138 
Short  v.  Sears,   137 
Shorthall  v.   Mitchell,  487 
Shorthill  v.  Ferguson,   151 
Shotwell  v.  Murray,  867 
Shouse  v.  Doane,  34.  44,  201 
Shriver    v.    Shriver,     700.    712,    730, 

740,  742,  752,  826 
Shrove  v.   Webb,  595 
Shroycr  v.   Xickell.   138,  655 
Shryer  v.  Morgan,  217 
Shultz  v.  Moore.   58 
Shultz  v.  Sanders,   127 
Shurtz  v.  Thomas.  15,  497 
Sibbald  v.   Lowrie,   189 
Sibley   v.    Bullis.    144 
Sibley   v.   Spring,   35 
Sidders   v.    Riley,   284 
Sidebotham,   Ex  parte,   188,   189 
Sidwell  v.  Birney,  02 


Ixvi 


TABLE   OF    CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Sikes  v.  Wild,  214,  226 
Silbar  v.  Ryder,  564,  567 
Silliman  v.  Gillespie,  493 
Silverman  v.  Loomis,  389 
Simanovich  v.   Wood,   283,  293 
Simis  v.  McElroy,  743,  <37,  767 
Simmons  v.  Haseltine,  717,  720 
Simmons  v.  North,   574 
Simmons  v.  Zimmerman,   728 
Simons  v.  Patchett,   213,   229 
Simon  v.  Vandeveer,   734 
Simpson  v.  Atkinson,  484 
Simpson  v.  Belvin,   392,   417,   429 
Simpson  v.  Greeley,   545 
Simpson  v.  Hart,  837 
Simpson  v.  Hawkins,    445,    631,    723, 

830,  838,  840,  842 
Sims  v.  Boaz,  204 
Sims  v.  Gray,   138 
Sims  v.  Lewis,  487 
Sinclair  v.  Jackson,  524 
Sine  v.  Fox,  337 
Singletary  v.  Carter,  105 
Sisk  v.  Woodruff,  370,  427,  430 
Sisters,  etc.,  v.  Benzinger,  761 
Sivoly   v.    Scott,   015 
Sizemore  v.  Pinkston,  621 
Skaaraas  v.  Finnegan,  214 
Skally  v.  Shute,  353 
Skerrett  v.   Presbyterian  Society,  559 
Skilleen  v.  May,  690 
Skinner  v.  Fletcher,  64 
Skinner  v.  Moore,  103 
Skinner  v.  Starner,  286 
Skull  v.  Clenister,  21 
Slack  v.  McLagan,  467 
Slack  v.  Thompson,    149 
Slater  v,  Rawson.  256,  262,  388 
Slaughter  v.  Tindle,  488 
Slayback  v.  Jones,  353 
Sloane  v.  Wells,   503 
Slocum  v.  Bray,  47 
Sloper  v.   Fish,  762 
Small  v.  Atwood,  587 
Small  v.  Jones,  523 
Small  v.  Proctor,   552 
Small  v.  Reeves,   273,    360,   445,   459, 

469 

Smeich  v.  Herbst,  620,  626 
Smiley  v.  Fries,   522 
Smith  v.  Abington  Sav.  Bk.,  283,293 
Smith  v.  Acker,   469 
Smith  v.  Ackerman,   444,   459,   470 
Smith  v.  Arnold,   110 
Smith  v.  Babcock,    194,    684 
Smith  v.  Brittain,  84 
Smith  v.  Brittenham,   695 
Smith  v.  Busby,  207,  695 
Smith  v,  Cannell,  300,  526,  831 
Smith  v.  Cansler,  805 
Smith  v.  Carney,   210,   318 


Smith  v.  Chancy,  650,  670 

Smith  v.  Chapman,   563 

Smith  v.  Compton,  404.  417,  431 

Smith  v.  Davis,   299,  323 

Smith  v.  Death,  730 

Smith  v.  De  Rusey,  545 

Smith  v.  Detroit  Min.   Co.,   191 

Smith  v.  Dixon,   359 

Smith  v.  Ellis,   30 

Smith  v.  Fitting,   459 

Smith  v.  Fly,   337,   866 

Smith  v.  Haynes,  41,  633 

Smith  v.  Henry,  200 

Smith  v.  Hudson,   444,   633 

Smith  v.  Hughes,  260,  304,  448,  634 

Smith  v.  Hunt,   60 

Smith  v.  Ingram,  350,  378,  527 

Smith  v.  Jefts,  263,  311,  316 

Smith  v.  Jones,  333,  445 

Smith  v.  Kelly,   127,   128,  480,  487 

Smith  v.  Kimball,   767 

Smith  v.  Lamb,   584,   604 

Smith  v.  Lewis,   202,   293.   604 

Smith  v.  Lloyd,   280,   287,   291 

Smith  v.  Mackin,  858 

Smith  v.  McCluskey,  592 

Smith  v.  McCool,   828 

Smith  v.  Montes,  521 

Smith  v.  Moreman,   770 

Smith  v.  Munday,    129 

Smith  v.  Newton,   444,   636 

Smith  v.  Nolan,  474 

Smith  v.  Painter,   118 

Smith  v.  Parsons,   419,   459,   509 

Smith  v.  Perry,   382 

Smith  v.  Pettus,   509,   589 

Smith  v.  Richards,  249,  311 

Smith  v.  Robertson,     202,     203,     209, 

624,  682,  690,  858 
Smith  v.  Rogers,  203 
Smith  v.  Schiele,   23 
Smith  v.  Scribner,   360 
Smith  v.  Shepard,   359 
Smith  v.  Sillyman,   670,   671 
Smith  v.  Smith,  202 
Smith  v.  Sprague,  302,  420 
Smith  v.  Strong,   272,   397.   403 
Smith  v.  Taylor,   24,  25,   164,  724 
Smith  v.  Turner,   762 
Smith  v.  Williams,   519 
Smith  v.  Winn,  80,  85,  868 
Smith  v.  Wood,   575 
Smith's  Appeal,  509 
Smithers  v,  Steiner,  828 
Smithson  v.  Inman,  702 
Smoot  v.  Coffin,  444,  639 
Smyth  v.  Merc.  Tr.  Co.,  235 
Snelgrove  v.  Snelgrove,  180 
Snell  V.  Mitchell,  480 
Snevilly  v.  Egle,  275,  614 
Snevely  v.  Lowe,  95 


TABLE   OF    CASES. 

[REFERENCES    ABE    TO    PAGES. ] 


bcvii 


Snider  v.  Coleruan,  138 

Snow  v.  Monk,  488,  789,  790 

Snyder  v.  Jennings,  363,  368 

Snyder  v.  Lane,  291,   318,   320 

Snyder  v.  Spaulding,  754 

Socum  v.  Haun,  277 

Sohier  v.  Williams,  90,  721.  760,  b20 

Somerville  v.  Hamilton,  429 

Somers  v.  Schmidt,  424,  427,  429 

Somes  v.  Skinner,  528,  531 

Sons  of  Temp.  v.  Brown,  203,  207,  209 

Soper  v,  Arnold,   187,  592 

Soper  v.  Kipp,  799 

Soper  v.  Stevens,  648 

Sorrels  v.  McHenry,  205,  443,  589, 
680 

Soule  v.  Dixon,  458 

Souter  v.  Drake,  20,  28 

Southall  v.  McKeand,  223 

Southby  v.  Hutt,    163,   189 

Southcomb  v.  Bishop,  694,  697 

Southern  Pac.  R.  Co.  v.  Choate,  192, 
193 

Southern  Wood  Mfg.  Co.  v.  Daven- 
port, 410 

Southwest  Va.  Min.  Co.  v.  Chase,  298 

Sowler  v.  Day,  559 

Sparrow  v.  Kingman,  544,  552 

Sparrow  v.  Oxford  R.  Co.,  21 

Spaulding  v.  Fierle,  202,  805 

Spaulding  v.  Hallenbeck,  777 

Spaulding  v.  Thompson,  299 

Speakman  v.  Forepaugh,  196,  711, 
733,  747 

Spear  v.  Allison,  351,  673 

Spence  v.  Durein,  251 

Spencer's  Case,  381 

Spencer  v.  Howe,  326 

Spencer  v.  Sandusky,   774,  805 

Spencer  v.  Topham,  713 

Spero  v.  Shulz,  789 

Spicer  v.  Jones,  798 

Spier  v.  Laman,  406,  552 

Spiller  v.  Westlake,  609 

Spindler  v.  Atkinson,  137 

Spitznagle  v.  Van  Hesscli,  04,  70 

Spoor  v.  Green,  265,  636 

Spoor  v.  Phillips,  121 

Spoor  v.  'i'ilson,   681 

Sprague  v.  Baker,  263,  312,  370,  37.1 

Spratt  v.  Jeffrey,  29 

Spray  v.  Rodman,  512 

Spring  v.  Chase,   404,   416 

Spring  v.  Sanford,  772 

Spring  v.  Tongue,  293 

Sprinkle  v.  Shields,  499 

Springs  v.  Harven,   138,  563 

Spruill   v.  Davenport,  231 

Spurr  v  Andrews,  298 

Spurr  v.  Benedict,  834,  865 

Staata  v.  Ten  Eyck,  214,  270,  400,  414 


Stackpole  v.  Robbins,   137 

Stacy  v.  Kemp,  457 

Stahley  v.  Irvine,  409,  668 

Staley  v.  Ivory,  622 

Stambaugh  v.   Smith,  289,  298 

Stanard  v.  Eldridge,  260,  293,  315 

Standifer  v.  Davis,  200,  207 

Stanley  v.   Goodrich,  280 

Stansbury  v.  Taggart,  453 

Stanton  v.  Button,  64,  71 

Stanton  v.  Tattersall,  21 

Stansbury  v.  Ingelhart,  95,  97 

Staples  v.  Dean,  402 

Staples  v.  Flint,  433 

Stapylton  v.  Scott,  482,  706 

Star  v.  Bennett,  250 

Stark  v.  Hill,  462,  685 

Stark  v.  Homuth,   337 

Stark  v.  OIney,  392,  402,  419,  423 

Stark  v,  Sigelow,  46 

Starke  v.  Henderson,  606 

Starkey  v.  Neese,  444,  477,  648 

Starnes  v.  Allison,  767 

State  v.  Crutchfield,  158 

State  v.  Gaillard,  82 

State  v.  Holloway,  238 

State  v.  Paup,   869 

State  v.  Salyers,    127 

Stead  v.   Baker,   849 

Steadman  v.   Handy,  496 

Stearns  v.   Hendersass,  521 

Stebbins  v.  Wolf,  392,  397,  414 

Steele  v.  Adams,   402 

Steele  v.  Kinkle,  199,  242 

Steele  v.  Mitchell,  148 

Stehley  v.  Irvin,  409,  668 

Steiner   v.   Baughman,   337,   362,  364, 

517 

Steiner  v.  Presby.  Ch.,  820 
Steiner  v.  Zwickey,  47 
Steinhardt  v.  Baker,  758 
Steinhauer  v.  Witman,  666,  672,  674 
Stelzer  v.  La  Rose,  454,  466 
Step  v.  Alkire,  492 
Stephen's  Appeal,  669,   775 
Stephens  v.  Black,    507 
Stephens  v.  Ells,   77 
Stephens  v.  Evans,   444 
Stephenson  v.  Harrison,  225 
Sterling  v.   Peet,    156,    157,  271,   364, 

399 

Sternberg  v.  McGovern,  498 
Stevans  v.  Evans,    273 
Stevens  v.  Austin,    717 
Stevens  v.  Banta,   757 
Stevens  v.  Guppy,    189 
Stevens  v.  Hampton,  58 
Stevens  v.  Jack,  430 
Stevens  v.  Van   Ness,   587 
Stevenson  v.  Buxton,   488 
Stevenson  v.  Fox,  790 


Ixviii 


TABLE   OF   CASES. 


[REFERENCES    ARE    TO    PACKS.] 


Stevenson  v.  Loehr,     354,     510,     749, 

755,   798,   803 
Stevenson  v.  Mathers,  510 
Stewart  v.  Anderson,  525,   544 
Stewart  v.  Conyngham.    737 
Stewart  v.  Devine,  752 
Stewart  v.  Drake,  311,  320,  358,  372, 

405 

Stewart  v.  Insall,  684 
Stewart  v.  Noble,  231 
Stewart  v.  Stewart,  861 
Stewart  v.  West,   146,  204,  330,  356, 

364,  436 

Stiger  v.   Bacon,  843,  845 
Stiles  v.   Winder,  571 
Stinchfield  v.  Little,   156 
Stingle  v.  Hawkins,  200 
Stinson  v.  Sumner,  313.  538 
Stipe  v.  Stipe,  365,  372 
Stitzel  v,  Copp,  804 
Stobert  v.  Smith,  754,  709 
Stock  v.  Aylward,   514 
Stockett  v.  Goodman,  53 
Stockham   v.   Cheney,   620 
Stockton  v.  Cook,    196,    198,    839 
Stockton  v.  George,  200 
Stockton  v.  Union  Oil   Co.,  825 
Stockwell  v.  Couillard,  340 
Stoddard  v.  Smith,  58'.),  822,  826 
Stokely  v.  Trout,  277 
Stokes  v.  Acklen,  815.  845 
Stokes  v.  Johnson,    828 
Stokes  v.  Jones,  527 
Stone  v.  Buckner,   198,   447,  453,  481 
Stone  v.  Darnell,   137 
Stone  v.  Gover,  615,  619 
Stone  v.  Hale,   561,  509 
Stone  v.  Hooker,  364 
Stone  v.  Lord,  207,  480 
Stone  v.  Sprague,  205 
Stone  v.  Young,  11 
Stoney  v,  Shultz,  125,  131 
Storrs  v.  Barker,  813 
Story  v.  Conger,  36 
Story  v.  Kemp,   648 
Stout  v.  Gully,  90 
Stout  v.  Jackson,  216,  329,  391 
Stow  v.   Stevens,   36 
Slowell  v.  Bernett,  267 
Stowell  v.  Haslett,   563 
Stowell  v.  Robinson,   792 
Strain  v.  Huff,  444 
Strange  v.   Watson,  485 
Stratton  v.  Kennard,  648 
Strauss  v.  Benheim,  716,  771 
Strawn   v.   Strawn,   542 
Strayn  v.  Stone,  568 
Streaper  v.  Fisher,  382 
Slreeper  v.  Abeln,  323 
Streeter  v.  Henley,   444 
Streeter  v.  Illsley,   755 


Strickland   v.   Draughan,  52 

Strike's  Case,  702,  703 

Strodes  v.  Patton,  83 

Strohauer   v.  Voltz,  286 

Strong  v.  Downing,   241,   445,   838 

Strong  v.  Lord,   238,  620 

Strong  v.  Strong,  235 

Strong  v.  Smith,  257 

Strong  v.  Waddell,  460,  506,  553,  603, 

617,  649 

Stroud  v.  Kasey,  127 
Strouse  v.   Drennan,   101 
Stryker  v.  Vanderbilt,  74 
Stuart  v.  Dutton,   70 
Stuart  v.  Nelson,  356 
Stubbs  v.     Page,  271 
Sturtevant  v.  Jaques,  748,  767 
Stutt  v.  Bldg.  Asson.,  293 
Stuuts  v.  Browne,  137 
Stuyvesant  v.  Weil,  754 
Styes  v.  Bobbins,  576 
Styles  v.  Blume,  488 
Sugg  v.  Stone,  490 
Summerall  v.  Graham,  615 
Summerfield  v.  White,  541,  542 
Sumner  v.  Barnard,  526 
Sumner  v.  Rhodes,  563 
Sumner  v.  Sessions,  106 
Sumner  v.  Williams,     153,     155,    271, 

414,  417 

Sumter  v.  Welch,  356,  475 
Sunderland  v.  Bell,  445 
Supervisors  v.  Bed  High  School,   777 
Surget  v.  Arighi,  352 
Susquehanna  Coal  Co.  v.  Quick,  377, 

389 

Sutherland  v.  DeLeon,  95 
Sutton  v.  Baillie,  323,  348 
Sutton  v.  Page,   214 
Sutton  v.  Schonwald,  91,   106 
Sutton  v.  Sutton,    37,    132,    845,    861 
Suydam  v.  Jones,  283,  379,  383,  ",S9, 

*  403 

Swafford  v.  Whipple,  275,  392,  402 
Swaggerty  v.  Smith,  140,  141 
Swain  v.  Burnett,    492,    725 
Swain  v.  Burnley,   848 
Swain  v.  Fidelity  Ins.  Co.,  756,  757 
Swaisland  v.  Dearsley,  30,  32 
Swan  v.  Drury,  20,  33,  35,  195,  205 
Swartz  v.  Ballou,  421 
Swasey  v.  Brooks,  263,  377,  375,  431 
Swayne  v.  Lyon,  754 
Sweem   v.   Steele,   212,   213,   224,   231 
Sweet  v.  Brown,  340,  548 
Sweetser  v.  Lowell,  545 
Sweetzer  v.  Hummel,  206,  209 
Swenk  v.  Stout,  427,  433 
Swepson  v.  Johnson.  482,  498 
Swett  v.   Patrick,   398,  418,   421,  423 
Swiggart  v.  Harber,  88,  96 


TABLE   OF   CASES. 

[REFERENCES    AISE    TO    PAGES.) 


Ixix 


Swihart  v.  Cline,  587 
Swindell  v.  Richey,  GOO 
Sykes  v.  Robbins,  503 
Syme  v.  Johnston,    798 
Syme  v.  Trice,   10G 
Symms  v.  James,  28,  30 

T. 

Tabb  v.  Binford,  329,  348 

Taber  v.  Shattuck,  570 

Taft  v.  Kessel,  36,  620,  623,  625,  634 

Taggart  v.  Risley,   519,   549 

Taggart  v.  Stanbury,   154,   155 

Taintor  v.  Hemmingway,  38 

Talbot  v.  Bedford,  356,  431,  434 

Talbot  v.  Hooser,  60 

Talbot  v.  Sebree,  699 

Tallmadge    v.    Wallis,    335,    447,   450, 

462,  464,  695 

Tallman  v.  Green,  242,  515,  516 
Tankersly  v.  Graham,  443,  615 
Tanner  v.  Levingston,  274,  412 
Tapley  v.  Lebaume,  271 
Tapp  v.  Beverley,   41 
Tapp  v.  Nock,   164,  795,  805 
Tarbell  v.  Tarbell,  421 
Tarpley  v.  Poage,  472 
Tarlton  v.  Daily,  475 
Tarwater  v,  Davis,  34 
Tate  v.  Anderson,   140 
Taul  v.  Bradford,  478,  601 
Tavener  v.  Barrett,  148,  153 
Taylor  v.  Barnes,  229 
Taylor  v.  Davis,  156 
Taylor  v.  Debar,  439,  517 
Tayior  v.  Fleet,   193 
Taylor  v.  Gilman,  285,  302 
Taylor  v.  Harrison,   144 
Taylor  v.  Heitz,    298,   317,   324 
Taylor  v.  Holter,  421 
Taylor  v.  Johnston,  207,  796 
Taylor  v.  Kelly,  490 
Taylor  v.  Leith,  248 
Taylor  v.  Lane,  311,  382 
Taylor  v.  Longworth,  207,  803 
Taylor  v.  Lyon,  445,  635,  838,  842 
Taylor  v.  Martindale,  30,  724 
Taylor  v.  Porter,  47,  222,  224,  698 
Taylor  v.  Preston,  38 
Tay!or  v.  Rowland,  488 
Taylor  v.  Shuffold,   543 
Taylor  v.  Stewart,   436 
Taylor  v.  Wainman,   545 
Taylor  v.  Wallace,    401 
Taylor  v.  Williams,  25,  164,  192,  718, 

725 

Teague  v.  Wade,  806 
Teague  v.  Whaley,  301,  308,  418 
Teal  v.  Langdale*  202 
Teal  v.  Wood  worth.    541 
Tcderall  v.  Bouknight,    103 


Tefft  v,  Munson,  531 

Templeton  v.  Falls   Lumber    Co..    115 

Templeton  v.  Jackson,    676 

Templeton  v.  Kramer,    447 

Ten  Broeck  v.  Livingston,  822 

Tendring  v.  London,  480,  809 

Tennell  v.  Dcwilt,   698 

Tennell  v.  Roberts,  698 

Terrell  v.  Farrar,   827 

Terrell  v.  Herron,    652 

Terrett  v.  Imp.  Co.,  282 

Territt  v.  Taylor,  528 

Terry  v.  Cutter,  129,  130 

Terry  v.  Drabenstadt,   409,   418    4*2 

424 

Terry  v.  George,   206 
Terry  v.  Westing,  777 
Terte   v.   Maynard,   503 
Tevis  v.  Richardson,  738,  742,  7f>;} 
Tewksbury  v.  Howard,  73$ 
Texas    Lumber    Mfg.    Co.    v.    Branch 

181 

Tex.  Ry.  Co.  v.  Gentry,  448 
Thacker  v.   Booth,  737 
Thackeray,  Re,  714 
Thackeray  v.  Wood,  147 
Tharin  v.  Ficklin,  20 
Thayer  v.  Clemence,    313.    399 
Thayer  v.  Palmer,   280,   332 
Thayer  v.  Sheriff,    119 
Thayer  v.  Torrey,    146 
Thayer  v.  Wendell,    155 
Thayer  v.  White,  34,   703 
Thielen  v.  Richardson,  522 
Thomas  v.  Bland,  381 
Thomas  v.  Bartow,  22     - 
Thomas  v.  Couitas,    234,    251 
Thomas  v.  Davidson,   78,  81,  818 
Thomas  v.  Dering,  500 
Thomas  v.  Dockins,    571 
Thomas  v.  Fleming,   727 
Thomas  v.  Glazener,   118.   123 
Thomas  v.  Harris,    668,    669,    670 
Thomas  v.  Meier,  65 
Thomas  v.  Perry,  259 
Thomas  v.  Phillips,  835 
Thomas  v.  Powell,   648 
Thomas  v.  St.  Paul's  Ch.,  496 
Thomas  v.  Schee,  160 
Thomas  v.  Stickle,  363,  368,  370,  374, 

550 

Thomas  v.  Wyatt,  45 
Thompson  v.  Adams,  508 
Thompson  v.  Avery,   726 
Thompson  v.  Bra/ile,   433 
Thompson  v.  Christian,   443,   657 
Thompson  v.  Dallas,     189,    616.     771. 

813 

Thompson  v.  Doe.   99 
Thompson  v.  Dullis,   616 
Thompson  v.  Gould,   596 


Ixx 


TABLE   OF  CASKS. 


[BEFEREXCF.S    ARE    TO    PAGES.] 


Thompson  v.  Guthrie,    214,    222,    391, 

414 

Thompson  v.  Hart,   99 
Thompson  v.  Hawley,   33,    35 
Thompson  v.  Jackson,  866 
Thompson  v.  Kilcrease,    224 
Thompson  v.  Lee,  699 
Thompson  v.  Marshall,   558,   569 
Thompson  v.  McCord,    475 
Thompson  v.  Merrill,   541 
Thompson  v.  Miles,   586 
Thompson  v.  Milliken,    737 
Thompson  v.  Morrow,    414 
Thompson  v.  Munger,    110,    111 
Thompson  v.  Noble,  597 
Thompson  v.  Sanders,   382 
Thompson  v.  Schenectadv,     &c.,     Co., 

342 

Thompson  v.  Shattuck,  380 
Thompson  v.  Shepherd,  443 
Thompson  v.  Shoemaker,   34,  461 
Thompson  v.  Thompson,  44.   280 
Thompson  v.  Tolmie,  98,  99,   101 
Thorn  v.  Mayer,  766 
Thorne  v.  Clark,  420 
Thorndike  v.  Norris,  519 
Thornton  v.  Mulquinne,   103 
Thorp  v.   Keokuk   Coal   Co.,   469,   648 
Thrasher  v.  Finkard,  778 
Thredgill  v.  Pintard,  406,  507,  508 
Threlkeld  v.  Campbell,  78.  80,  141 
Threlkeld  v.  Fitzhugh,  2i(i,  391,  394, 

414 

Thrift  v.  Fritz,   128 
Thurgood  v.  Spring,  470 
Thurman  v.  "Cameron,  62,  63 
Thurmond   v.   Brownson,   136,   348 
Thweatt  v.   McLeod,   661 
Tibbetts  v.  Ayers,   462,   464,   467 
Tibbetts  v.  Lesson,   292 
Tiernan  v.  Roland,  774,   808 
Tilley  v.  Bridges,    109 
Tilley  v.  Land  Co.,  492 
Tilley  v.  Thomas,    803 
Tillotson  v.  Boyd,   262 
Tillotson  v.  Gesner,  716,  817 
Tillotson  v.  Grapes,  450,  461,   676 
Tillotson  v.  Kennedy,   545 
Tillotson  v.  Pritchard,   388,   397 
Tilton  v.  Emery,  520 
Timms  v.  Shannon,  446,  4.~>7.  609,  617 
Tindall  v.  Cobham,    615,   694 
Tindall  v.  Conover,   33,   34,   35 
Tinney  v.  Ashley,  33,   208 
Tinney  v.  Watson,   121 
Tirnbey  v.  Kinsey,  228 
Tison  v.  Smith,  793,  808 
Tobin  v.  Bell,  33 
Tobin  v.  Larkin,  492 
Tod  v.  Gallaher,  512 
Todd  v.  Down,  83 


Todd  v.  Hoggart,  592 

Todd  v.  McLaughlin,  698 

Todd  v.  Union  Dime  Sav,  Bank,  707, 

764 

Tollensen  v.  Gunderson,  679 
Tompkins    v.    Hyatt,    189,    192,    610, 

695,  811 

Tomlin  v.   McChord,   763 
Tomlinson  v.  Savage,  739,  827 
Tone  v.  Brace,  836 
Toney  v.  Toney,  588 
Tong  v.  Matthews,  C92 
Toops  v.   Snyder,   566 
Toole  v.  Toole,  77,  759,  812 
Tooley  v.  Chase,  559 
Tooley  v.  Kane,  88 
Toplitf  v.  Atl.  L.  &  Imp.  Co.,  779 
Topp  v.  White,  245,  492,  587,  728 
Torrance  v,  Bolton,  27,  28,  30 
Tourville  v.  Naish,  453,  471 
Towles  v.  Turner,  126 
Town  v.   Needham,   132,   386 
Towns  v.  Barrett,  584 
Townsend  v.  Hubbard,   55 
Townsend  v.  Lewis,  798 
Townsend  v.  Morris,  329,  348,  433 
Townsend  v.  Smith,    140 
Townsend  v.  Tufts,  202 
Townsend  v.  Ward,   286 
Townsend  v.  Weld,    284,   291,   403 
Townshend  v.  Goodfellow,   769,  808 
Tracy  v.  Gunn,  224 
Trapier  v.  Waldo,  77,  91 
Trask  v.  Vinson,  214,  461,  483 
Traver  v.  Halstead,  35,  205 
Treat  v.   Orono,   683 
Tremaine  v.  Lining,   148 
Treptow  v,   Buse,   118 
Trevino  v.  Cantu,  504,  580,  861 
Trevivan  v.  Lawrence,  531 
Trice  v.  Kayton,  305 
Trinity  Church  v.  Higgins,  282 
Trigg  v.  Reade,  865 
Trimmer  v.  Gorman,  746,  831 
Troost  v.  Davis,  512 
Troutman  v.  Cowing,  496 
Troxell  v.  Johnson,    356 
Troxell  v.  Stevens,   356,  381,  544 
Trull  v.  Eastman,  526,  546,  550 
Trulock  v.  Peeples,  62 
Trumbo  v.  Lockridge,  445,  848 
Trust  Co.   v.  Muse,  80 
Trustees    v.  Lynch,  596,  776 
Trustees  N.    Y.    Pub.    School,    In    re, 

746 

Truster  v.   Snelson,   277 
Trutt  v.  Spott,  332 
Tryce  v.   Dittus,  804 
Tubbs  v.  Gatewood,  67 
Tucker  v.  Clarke,  536 
Tucker  v.  Gordon,   126,   683,   684 


TABLE   OF   CASES. 


Ixxi 


[HEFEBENfKS    ARE    TO    PAGES.] 


Tucker  v.  McArthui,   311,   377 

Tucker  v.  Woods,   35,   777 

Tudor  v.   Taylor,   140 

Tufts   v.   Adams.   202.   292,   313,   322, 

359,  399 

Tuggle  v.  Hamilton,  3(>G 
Tuite  v.  Miller,  260,  3C2,  515 
Tull  v.  Royston,  294 
Tully  v.  Davis,  63 
Turk  v.  Sidles,  89,   127 
Turnbull  v.  Gadsden,  685 
Turner  v.  Beaurain,   30 
Turner  v.  Goodrich,     370,     373,     40-1, 

421 

Turner  v.  Harvey,   242 
Turner  v.  Howell,  195 
Turner  v.  McDonald,   729,    741 
Turner  v.  Miller,  422 
Turner  v.  Nightingale,  586 
Turner  v.  Reynolds,    776 
Turner  v.  Turner,   869 
Tinney  v.  East  Warren  Co.,  61 
Turney  v.   Hemminway,   600 
Tustin  v.  Faught,  46 
Twambly  v.   Henlev,   256 
Tweddell  v.  Tweddell,  286 
Tweed  v.  Mills,   22,   29,   38 
Tu-ohig  v.  Brown,  198,  601 
Tybee  v.  Webb,  648 
Tyler  v.  Young,  34,  461 
Tymason  v.  Bates,  337 
Tyree  v.  Williams,  764 
Tyson  v.  Belcher,    106 
Tyson  v.  Brown,   115 
Tyson  v.  Eyrick,  214,  223 
Tyson  v.  Passmore,  483 

U. 

Uhl  v.  Langhran,  757 
Uhl  v.  Ohio  R.  R.  Co.,  439 
Uhler  v.  Hutchinson,  59 
Underwood  v.  Birchard,   351 
Underwood  v.  Parker,    622 
Underwood  v.  West,   695 
Union  Mut.  Life  Ins.  Co.  v.  Crowl,  73 
Union  Nat.  Bank  v.  Pinner,  843,  845 
Union  Pac.  R.  Co.  v.  Barnes,  648,  855 
Union  Safe'Dep.  Co.  v.  (Jhisholm,  1(!0 
Union  Stave  Co.  v.  Smith.  615 
United  States  v.  Bank  of  Georgia,  648 
United  States  v.  Cal.,  etc.,  Land  Co., 

53 

United  States  v.  Duncan,  122 
University  v.  Joslyn,   352,   360 
University  v.  Lassiter,    106 
Updike  v.  Abel,  249 
Upham  v.   Hamill,    119,    121 
Upperton  v.  Nicholson,  163 
Upshaw  v.  Debow,  246 
Upson  v.  Howe,  92,  104 
Upton  v.  Maurice,  748,  793 


Upton  v.  Trebilcock,  250 
Urmston  v.  Pate,  648,  861 
Utica,  etc.,  R.  Co.  v.  Gates,  322 

V. 

Vail  v.  Nelson,  37,  193 

Valle  v.  Clemens,  548 

Valle  v.  Fleming,   136,   138,  513 

Vanada  v.   Hopkins,   148,   154 

Van  Amringe  v.  Morton,   183 

Van  Benthuysen  v.  Crasper,  610 

Vance  v.  Fore,  52 

Vance  v.  House,    631,    638,    644,    738, 

838 

Vance  v.  Schuyler,   57,   60 
Vance  v.  Shroyer,   622 
Vancouver  v.  Bliss,    189 
Vandever  v.  Baker,  31,  88 
Vanderkarr  v.  Vanderkarr,  356 
Van  Epps  v.  Harrison,    695 
Van  Epps  v.  Schenectady,      35,      150, 

155,  259,  826 

Van  Hoesen  v.  Benham,  259 
Van  Home  v.  Crain,  379 
Van  Lew  v.  Parr,  472,  475,  639,  680 
Van  Ness  v.  Bank,  58 
Van  Nest  v.  Kellum,  273 
Van  Nostraud  v.  Wright,  258 
Vannoy  v.  Martin,   120 
Van  Rensselaer  v.  Kearney,  298,  439, 

549 
Van  Rensselaer    v.    Van    Rensselaer, 

362 

Van  Riper  v.   Williams,  838 
Van  Riswick  v.  Wallach,  670 
Van  Schaick  v.  Lese,  736,  777 
Vanscoyoc  v.  Kemler,   140,   141 
Van  Waggoner  v.   McEwen,   454,   838 
Van  Wagner    v.    Van    Nostrand,   2.">8, 

308,   333 

Van  Winkle  v.  Earl,  286 
Van  Wyck  v.  Richardson,  755 
Vardaman  v.  Lawson,  23,  36,  148 
Varick  v.  Briggs,  385 
Varick  v.  Edwards,  547 
Vather  v.  Hinds,   180 
Vather  v.  Lytle,  118,  141 
Vaughn  v.  Smith,   686 
Vaughn  v.  Stuzaker,  260 
Veeder  v.  Fonda,  88 
Verdin  v.   Slocum,   128 
Vernol  v.  Vernol,  195,  661 
Vest  v.  Weir,  118,  602 
Vick  v.   Percy,  446,   848 
Viele  v.  R,  Co.,  190 
Vielle  v.  Osgood,  44 
Vincent  v.  Hicks,  3G7 
Vivian  v.   Stevens,  445 
Vining  v.  Leeman,  444,  622,  695 
Volz  v.  Steiner,  755.  790 
Voorhees  v.  Bank,  88,   94 


Ixxii 


TABLE    OF   CASES. 

[REFERENCES    ARE    TO    PAGES.] 


Voorhees  v.  De  Meyer,  494,  550,  732, 

798 

Voorhis  v.  Bank,   90 
Voorhis  v.  Forsyth,   297,   326 
Vose  v.   Bradstreet,  51 
Vought  v.  Williams,  721,  724,  746 
Vreeland   v.    Blauvelt,   529,    707,   712, 

768 
Vrooman  v.  Phelps,   682 

W. 

Wachendorf  v.  Lancaster,  83,  402 

Wacker  v.  Straub,  415,  447 

VVaddell  v.  VVaddell,  768 

Waddell  v.  Wolfe,  28,  29 

Wade  v.  Comstock,   432 

Wade  v.  Greenwood,   738 

Wade  v.  Killough,  207,   615 

Wade  v.  Lindsay,  527 

Wade  v.  Percy,   844 

Wade  v.  Thurman,  661,  681 

Wadhams  v.  Inness,   409 

Wadhams  v.  Swan,  259,  453 

Wadleigh  v.  Glines,   541,   542 

Wadsworth  v.  Wendell,  74 

Wagenblast  v.   Washburn,   568 

Waggle  v.  Worthy,  348 

Waggoner  v.  Waggoner,  731 

Wagner  v.  Finnegan,  363 

Wagner  v.  Hodge,  747,  760,  766 

Wagner  v.  Perry,    199,   239,   245,    778 

Wailes  v.   Cooper,  446,  453,  847,   848 

Wait  v.  Maxwell,  258 

Wait  v.  Smith,  171 

Wakeman    v,    Dutchess    of    Rutland. 

147,   154,   861 

Walbridge  v.  Day,  118,  120,  683 
Walden  v.   Gridley,   118,   141,   142 
Waldo  v.  Long,  320,  417 
Waldron  v.  McCarty,  369,  371 
Waldron  v.  Zollikoffer,  37 
Wales  v.  Bogne,  92 
Walke  v.  Moody,  120 
Walker  v.  Arnold,  519 
Walker  v.  Barnes,   831 
Walker  v.  Constable,   594,   629 
Walker  v.  Deane,  371 
Walker  v.  Deaver,  265,  300,  311,  321, 

346 

Walker  v.  France.,  660,  673 
Walker  v.  Gilbert,   446,   638 
Walker  v.  Oilman,  754 
Walker  v.  Hall,  344,  540 
Walker  v.  Johnson,   626 
Walker  v.  Moore,  212,  215,  220 
Walker  v,  Ogden,  507,   699 
Walker  v.  Quigg,   195 
Walker  v.  Ruffner,  107 
Walker  v.  Towns,   613 
Walker  v.  Wilson,   258,   448 
Wall  v.  Mason,  512 


Wallace  v.  Harmsted,   182 

Wallace  v.  Maxwell,   543 

Wallace  v.  McLaughlin,  485,  492,591 

Wallace  v.  Minor,   528 

Wallace  v.  Pereles,   387,  424 

Wallace  v.  Talbot,    410 

Walling  v.  Kinnaird,  20  / 

Wallison  v.  Watkins,  460 

Walsh  v.  Barton,   704,   783 

Walsh  v.  Bayard,  488 

Walsh  v.  Dunn,   418,   428 

Walsh  v.  Hall,   236,   684 

Walmsley  v.  Stalnaker,  849 

Walter  v,  De  Graaf,  46,  757 

Walter  v.  Johnston,  449 

Walters  v.   Miller,  201 

Walther  v.  Briggs,  286,  523 

Walton  v.  Bonham,  700,  838 

Walton  v.  Campbell,    381,   421 

Walton  v.  Cox,    137,   223,   424,   430 

Walton  v.  Meeks,   718,   720,   729,   746 

Walton  v.  Reager,    110,    112 

Walton  v.  Wuterhouse,   520 

Waltz  v.  Barroway,  99 

Wamsley  v.  Hunter,  589 

WTanner  v.  Sisson,  563 

Ward  v.  Ashbrook,  274,  300,  363 

Ward  v.  Bartholomew,  155 

Ward  v.  Mclntosh,  436 

Ward  v.  Packard,  242 

Ward  v.  Williams,   110,   112 

Ward  v.  Wiman,  65,  240,  684,  687 

Warde  v.  Dixon,  713 

Wardell  v.  Fosdick,  13,  661,  684,  687 

Ware  v.  Houghton,   446 

Ware  v.  Weatherall,  394,  400 

Warfield  v.   &rdman,  295 

Waring  v.   Ward,  286 

Wark  v.  Willard.  534 

Warner  v.  Hatfield,   34,   777 

Warner  v.  Helm,   123 

Warner  v.  Sisson,  561.  563 

Warren  v.  Banning,  711,  718,  720,  769 

Warren  v.  Carey,  241 

Warren  v.  Richardson,    184 

Warren  v.  nichmond,   195,  200 

Warren  v.  Stoddart,     281,     317,     373, 

471 

Warren  v.  Wheeler,   214 
Warwick  v.  Norvell,  842 
Washer  v.  Brown,  509 
Wash.   City    Bank    v.   Thornton,    147, 

281,   311,   334 
Waters  v.  Bagley,  311 
Waters  v.  Mattin-ly,  858 
Waters  v.  Thorn,    188 
Waters  v.  Travis,  493.  826 
Watkins  v.  Holman,  769 
Watkins  v.  Hopkins,  617 
Watkins  v.  Warsell,  519 
Watkins  v.  Wimings,  132 


TABLE    OF   CASES. 


Ixxiii 


[REFERENCES    ARE    TO    PAGES.] 


Watson  v.  Baker,  249 

Watson  v.  Church,  755 

Watson  v.  Hoy,  78 

Watson  v.  Kemp,   624 

Watson  v.  Reissig,    123 

Watt  v.  Rogers,  192 

Watts  v.  Fletcher,   308 

Watts  v.  Holland,   725 

Watts  v.  Parker,  256 

Watts  v.  Waddle,  698,  769,  811 

Watts  v.  Wellman,   287 

Waugh  v.  Land,   153 

Way  v.  Raymond,  203 

Wead  v.  Larkin,  388 

Weatherbee  v.  Bennett,  301,,  325 

Weatherford  v.  James,  501 

Weaver  v.  Wilson,  444,  636 

Webb  v.  Alexander,  369,  434 

Webb  v.  Chisholm,  707 

Webb  v.  Coons,   137 

Webb  v.  Holt,   345,   417 

Webb  v.  Hutt,  68 

Webb  v.  Hughes,   193,  801 

Webb  v.  Kirby,   28 

Webb  v.  Pond,  282 

Webb  v.  Spicer,   593 

Webb  v.  Stephenson,    194,   793,   807 

Webber  v.  Cox,  127 

Webber  v.  Webber,  264 

Weber  v.  Anderson,  404,  409 

Webster  v.  Conley,    154 

Webster  v.  Hall,  65 

Webster  v.  Haworth,  125,  682 

Webster  v.  Kings    Co.    N.    Co.,    599, 

715,  774,  790,  794,  828 
Weddall  v.   Nixon,  715 
Wedel  v.  Herman,  72 
Weed  Machine  Co.  v.  Emerson,  545 
Weeks  v.  Toms,  754 
Weems  v.  Love  Manf'g  Co.,  84 
Weems  v.  McCaughan,  342 
Weidler  v.  Bank,   118,  125,  674 
Weightman  v.  Reynolds,   5.'59 
Weightman  v.  Spofford,   648 
Weil  v.  Radley,  716,  737,  789 
Weinstock  v.  Levison,  694,  757 
Weiss  v.  Binnian,    199 
Welbon  v.  Welbon,  341 
Welch  v.  Davis,  157 
Welch  v.  Button,  25 
Welch  v.  Hoyt,    112 
Welch  v.  Lawson,  211 
Welch  v.  Matthews,  811 
Welch  v.  Sullivan,    63 
Welch  v.  Watkins,  589 
Weld  v.  Traip,  299 
Wellborn  v.  Finley,   519 
Wellborn  v.  Schist,   482 
Weller  v.  Trust  Co.,  304 
Welles  v.  Cole,  59 
Wellman  v.  Dismukes,  446,  589 


Wells  v.  Abernathy,  214,  219 

Wells  v.  Day,   19,  202,  827 

Wells  v.  Lewis,  807 

Wells  v.  Ogden,  568 

Wells  v.  Smith,  208 

Wells  v.  Walker,   180 

Wells  v.  Yates,   566 

Welsh  v.  Bayard,   488 

Welsh  v.  Dutton,  551 

Walshbillig  v.  Drennart,  556 

Wendell  v.  North,  424,  426 

Wentworth  v.  Goodwin,  446 

Wesco   v.   Kern,   377,   385,   390 

Wesley  v.  Eels,  706,  712,  780 

Wessel   v.  Cramer,   781 

West  v.  Shaw,   589 

West  v.  Spaulding,  281 

West  v.  Stewart,  259,  352 

West  v.  West,   396 

Westall  v.  Austin,  798 

West  B'way  Real  Estate  Co.  v.  Bay- 

liss,  658 

Westbrook  v.  McMillan,  476 
West    Coast    Mfg.    Co.    v.    Imp.    Co., 

392,  410 
Western  Mining  Co.  v.  Coal  Co.,  545, 

546 

Westervelt  v.   Mattheson,  492 
Westfall  v.   Washlagel,  738 
Westhafer  v.  Koons,  754 
Westheimer  v.  Reed,  651 
Westrope  v.  Chambers,  263,  368 
Wetherbee  v.  Bennett,  301,  325 
Wetherell  v,   Brobst,  492 
Wetmore  v.  Bruce,  587,  594,  596,  776 
Wetzel  v.  Richcreek,  256,  360,  407 
Weyand  v.  Tipton,  770 
Whallon  v.  Kauffman,  338 
Whatley  v.  Patton,  397 
Wheat  v.   Dotson,   443,   464,  620,   695 
Wheatley  v.  Slade,  491 
Wheaton  v.  Wheaton,  868 
Wheeler  v.  Hatch,  256,  271,  410 
Wheeler  v.  McBain,  519 
Wheeler  v.  Sohier,  382,  383 
Wheeler  v.  Standley,  446,  856 
Wheeler  v.  Styles,  214,  406,  552 
Wheeler  v.  Tracy,  20,  V75 
Wheeler  v.  Wayne   Co.,  332,  343 
Wheelock  v.  Overshiner,  431 
Wheelock  v.  Thayer,   388 
Whisler  v.   Hicks,  444,  459,  469,  470 
Whitbeck  v.  Cook,   260,    304 
Whitbeck  v.  Waine,  452 
White  v.  Brocaw,  340.  548 
White  v.  Dobson.  492 
White  v.  Ewing,  447,  448 
White  v.  Foljambe,   134,  154,  744       t 
White  v.  Furtzwangler,   450 
White  v.  Graves.   181 
White  v.  Hardin,  695 


Ixxiv 


TABLE    OF    CASES. 
[REFEKENCES    ABE   TO    PAGES.] 


White  v.  Lowery,  6C8,  683 

White  v.  Mooers,  481 

White  v.  Park,    140 

White  v.  Patton,  527,  531 

White  v.  Presly,  382, 

White  v.  Sayre,  54 

White  v.  Seaver,  681 

White  v.  Stevens,  269 

White  v.  Stretch,  843 

White  v.  Sutherland,  235 

White  v.  Tucker,  222,  698 

White  v.  Whitney,  359,  382,  386,  398 

White  v.  Williams,  428 

Whitehead  v.  Brown,  561 

Whitehead  v.  Carr,  150 

Whitehill  v.  Gotwalt,  343,  344 

Whitehurst  v.  Boyd,  34,  589 

Whiteman  v.  Castleburg,  618 

Whitesides  v.  Cooper,  347 

Whitesides  v.  Jennings,  214 

Whitesides  v.  Magruder,  008,   323 

Whitlock'v,  Denlinger,  234,  444,  622, 

635 

Whitlock,  Ex  parte,  758 
Whitman  v.  Westman,  573 
Whitmore  v.  Parks,  122 
Whitney  v.  Allaire,  14,  191,  661,  633, 

686 

Whitney  v.  Arnold,   70 
Whitney  v.  Brooks,   141 
Whitney  v.  Cochran,  619 
Whitney  v.  Dewey,   156,  415 
Whitney  v.  Dinsmore,   202,    313,    372, 

377 

Whitney  v.  Lewis,   447,   462 
Whitney  v.  Railroad  Co..  301 
Whitney  v.  Smith,  568 
Whitson  v.  Grosvenor,  519,  522 
Whittaker  v.  Kone,  259 
Whittaker  v.  Miller,   44 
Whittemore  v.  Whittemore,    491,    825 
Whittemore  v.  Farrington,    560,    648, 

657,  862 

Whitten  v.  Krick,  291,  311,  346 
Whittey  v.  Lide,  838 
Whittington  v.  Corder,  21 
Whitworth  v.  Stuckey,  477,  624,  639, 

645 

Whitzman  v.  Hirsh,  380,  401 
Wickham  v.  Ernest,  615 
Wickham  v.  Evered,  694 
Wickliff  v.  Clay,  587,  698,  700 
Wickliff  v.  Lee,  695,  742 
Wicklow  v.  Lane,  521 
Wickman  v.  Robinson,  625 
Widmer  v.  Martin,  815 
Wieland  v.  Renner,  737 
Wiesner  v.  Zaun,  519 
Wiggins  v.  McGimpsey,   35,    195,    199, 

600,  611,  616 


Wiggins  v.  Pender,  357,  369,  377,390, 

422 

Wight  v.  Gottschalk,  348 
Wight  v.  Shaw,  548 
Wightman  v.  Reside,  821 
Wilburn  v.  McCalley,  115 
Wilcox  v.  Latin,  187,  695 
Wilcox  v.  Lucas,   571 
Wilcox  v.  Musche,  315 
Wilcoxon  v.  Galloway,  492 
Wilde  v.  Fort,  184,  220 
Wilder  v.  Ireland,  255,  259,  350,  425, 

428,  437 

Wilder  v.  Smith,  848 
Wiley  v.  Fitzpatrick,  634,  841 
Wiley  v.  Howard,  241,   615,   622,   79G 
Wiley  v.  White,    134,    628,    650,    65(i 
Wilgus  v.   Hughes,  505 
Wilhelm  v.  Federgreen,  742,  743 
Wilhelm  v.  Fimple,     203,     224,     599, 

702 

Wilkerson  v.  Allen,  79 
Wilkerson  v.  Chadd,   444 
Wilkins  v.  Hogue,   447,    848 
Wilkins  v.  Irvine,   599 
Wilkinson  v.  Green,  506 
Wilkinson  v.  Roper,  51 
Willan  v.  Willan,  853,  871 
Willard  v.  Twitchell,  255 
Wilier  v.   Weyand,  497 
Willets  v.   Burgess,  315,  321 
William  Farrell  Co.  v.  Deshon,  472 
Williams  v.  Beeman,  377,  401,  415 
Williams  v.  Baker,   459 
Williams  v.  Burg,  382,  422,  426,  428 
Williams  v.  Burrell,  408,  417 
Williams  v.  Carter,  698,  734 
Williams  v.  Cudd,  576 
Williams  v.  Cummings,   127 
Williams  v.  Daly,   164,   165 
Williams  v.  Doolittle,   774 
Williams  v.  Edwards,   492,   500,   726 
Williams  v.  Fowle,   282 
Williams  v.  Fryburger,  452 
Williams  v.  Glenn,   78,   81,   87 
Williams  v.  Glenton,  229 
Williams  v.  Hathaway,   657 
Williams  v.  Hogan,   256,   259 
Williams  v.  Johnson,  117 
Williams  v.  Lee,  837 
Williams  v.  Mansell,  482 
Williams  v.  Marx,  714 
Williams  v.  McDonald,  109 
Williams  v.  Mitchell,  700,  855 
Williams  v.  Monk,  597 
Williams  v.  Pendleton,  505 
Williams  v.  Peters,   519 
Williams  v.  Pope,  497 
Williams  v.  Porter,  737,  815 
Williams  v.  Potts,  35 
Williams  v.  Reed,  654 


TABLE   OF   CASES. 

[REFERENCES   ARE   TO   PAGES.] 


Ixxv 


Williams  v.  Rogers,  698,  700,  703 
Williams  v.  Sax,  458 
Williams  v.  Schembri,  757 
Williams  v.  Seawell,    759 
Williams  v.  Shaw,  363,  425 
Williams  v.  Thomas,    245,    253,    405, 

613 
Williams  v.  Wetherbee,  263,  383,  390, 

426,  431,  436 

Williams  v.  Williams,   519 
Williams  v.  Wilson,  699 
Williamson  v.  Banning,  763 
Williamson  v.  Field,  78,  752 
Williamson  v.  Johnston,  121 
Williamson  v.  Neeves,  595,  795 
Williamson  v.  Raney,  607,  695 
Williamson  v.  Test,  402 
Williamson  v.  Williamson,    418,    433 
Willis  v.  Saunders,  568,  570,  573 
Willison  v.  Watkins,  507 
Wills  v.  Porter,  187 
Wills  v.  Primm,  433,  435 
Wills  v.  Slade,  737 
Wills  v.  Van  Dyke,  119 
Willson  v.  Willson,  271,  318,  391,  414 
Wilmot  v.  Wilkinson,  202 
Wilsey  v.  Dennis,   145,  732,  781,  782 
Wilson  v.  Breyfogle,  688 
Wilson  v.  Bumfield,  497,  826 
Wilson  v.  Carey,  31 
Wilson  v.  Cochran,  158,  301,  375,  388, 

665,  668,  671,  675 
Wilson  v.  Cox,  492 
Wilson  v.  Deen,  863 
Wilson  v.  Forbes,  258,  265,   271,   272 
Wilson  v.  Getty,  35,  36,  595 
Wilson  v.  Higbee,  245,  664 
Wilson  v.  Holden,  16 
Wilson  v.  Holt,   136,   138 
Wilson  v.  Inloes,  51 
Wilson  v.  Irish,    144,   350,   676 
Wilson  v.  Jeffries,  730 
Wilson  v.  Johnson,  52 
Wilson  v.  Jordan,  443 
Wilson  v.  King,  573 
Wilson  v.  Mason,   180 
Wilson  v.  McElwee,  426 
Wilson  v.  McNeal,  73 
Wilson  v.  McVeagh,  770 
Wilson  v.  Moore,  472 
Wilson  v.  Parshall,  277 
Wilson  v.  Peele,  349,  416 
Wilson  v.  Raben,   79 
Wilson  v.  Riddick,  195 
Wilson  v.  Robertson,  215 
Wilson  v.  Shelton,  402 
Wilson  v.  Smith,  90,   105 
Wilson  v.  Spencer,  212,  215 
\Vilson  v.  Stewart,   576 
Wilson  v.  Tappan,  732,  766,  798 
Wilson  v.  Taylor,  384 


Wilson  v.  Traer,   58 

Wilson  v.  Wetherly,  507 

Wilson  v.  White,   111,   114,  752 

Wilson  v.  Widenham,  256,  387 

Wilson  v.  Williams,   496 

Wilson  v.  Wood,   144,   145 

Wilson  v.  Zajicek,   830 

Wilson's  Appeal,  067,  671,  673 

Wilson's  Case,  175 

Wilt  v.  Franklin,  402 

Wiltsie  v.  Shaw,  768 

Wilty    v.    Hightower,    356,    3(50,    371, 

638,   676,   848 

Wimberg  v,  Schwegeman,  622,  838 
Wimberly  v.  Collier,  423,  420 
Winans  v.  Huyck,  566 
Winch  v.  Bolton,  445 
Windle   v.   Bonebrake,    511 
Winfrey  v.  Drake,  535 
Wing  v.  Dodge,  109 
Wingate  v.  Hamilton,  493,  497 
Wingo  v.  Brown,   119,   121,   J25 
Wingo  v.  Parker,  519 
Winkler  v.  Higgins,  62 
Winne  v.  Reynolds,  602,   776,  823 
Winningham  v.  Pennock,  311,  321 
Winnipiscogee    Paper    Co.    v.    Eaton 

409,  418 
Winnipiscogee  Lake  Mfg.   Co.  v    Per- 

ley,  559 

Winslow  v.  Clark,   138 
Winslow  v.  Cornell,    137 
Winslow  v.  McCall,  360 
Winstead  v.  Davis,  446 
Winter  v.  Dent,    126 
Winter  v.  Elliott,  703 
Winter  v.  Stock,   710 
Wintermute  v.  Snyder,  874 
Winton  v.  Sherman,  207 
Wise  v.   Postlewait,  60 
Wisely  v.  Findlay,  53 
Wiswall  v.  McGowan,  487,  500 
Witbeck  v.  Waine,  661 
Withers  v.  Baird,    58,    150,    589,    763 
Withers  v.  Morel  I,  841 
Withers  v.  Powers,   360 
Witherspoon  v.  McCalla,  702 
Withey  v.  Munford,   383,  385 
Withouse  v.  Schaack,  566 
Wittbecker  v.  Waiters,  572 
Witter  v.  Biscoe,   148 
Wofford  v.  Ashcroft,  839.  843 
Wohlforth    v.    Chamberlain,    226,    716 
Wolbert  v.  Lucas,  670,  67 1 
Wolcott  v.  Johns,  727 
Wold  v.  Newguard,  829 
Wolf  v.  Fogarty,  63 
Wolford  v.  Phelps,   126 
Wollenberg  v.  Rose,  721,  733 
Wolverton  v.  Stevenson,   761 
Wornack  v.  Coleman,  771 


Ixxvi 


TABLE   OF   CASES. 


[REFERENCES   ABE  TO   PAGES.] 


Wood  v.  Bibbins,  392 

Wood  v.  Colvin,   130 

Wood  v.  Downes,   188 

Wood1  v.  Forncrook,    362 

Wood  v.  Griffith,  491 

Wood  v.  Johnson,  252 

Wood  v.  Lewis,   121 

Wood  v.  Majoribanks,  774 

Wood  v.  Mann,  78,  181 

Wood  v.  Perry,  506 

Wood  v.  Thornton,   412 

Woodbury  v.  Luddy,  496 

Woodcock  v.  Bennett,  21,  483,  489 

Woodfolk  v.   Blount,  653 

Woodhead  v.  Foulds,  737 

Wooding  v.   Grain,   799,  805 

Woodruff    v.    Bunce,    447,    639,    836, 

838,  841 

Woodruff  v.  Depue,  843 
Woodward  v.  Brown,  311 
Woods  v.   North,   239,   538,   806 
Woodward  v.  Allen,  366,  426,  434 
Woodward  v.  Rogers,  472,  473 
Woodward  v.  Woodward,   173 
Woodward's  App.,  38 
Woodworth  v.  Jones,  447 
Woolcot  v.   Peggie,   503 
Wooley  v.  Hampton,   153 
Wooley  v.  Hineman,  265.  270,  313 
Wooley  v.  Newcombe,  275,  277,  279 
Workman  v.  Mifflin,  354 
Worley  v.  Northcott,  615,  618 
Wortin  v.  Howard,  113 
Worthington  v.  Curd,    198,   291,   841 
Worthington  v.  Hylyer,  51 
Worthington  v.  McRoberts,  81,  83, 109 
Worthington  v.  Warrington,  28,  223 
Worthy  v.  Johnson,   157 
Wotton  v,  Hele,  351,  434 
Wragg  v.  Meade,  324 
Wray  v.  Furniss,  836,  838 
Wright  v.  Blackley,   615,   796 
Wright  v.  Carvillo,  13,  661,  662 
Wright  v.  Delafield,  563,  616 
Wright  v.  Dickson,  589,  696 
Wright  v.  Edwards,  91 
Wright  v.  Griffith,  189 
Wright  v.  Lasselle,  265 
Wright  v.  Mayer,  736 
Wright  v.  Nipple,  265,  410,  416 
Wright  v.  Phipps,  371,  372.  458 
Wright  v.  Sperry,  386 
Wright  v.  Swayne.  587 
Wright  v.  Welis,  59 
Wright  v.  Wright,  622 
Wright  v.  Young,  496 
Wnesthoff  v.  Seymour,  235 
Wyant  v.  Tuthill,  79 
Wyatt  v.  Garlington,  625 


Wyatt  v.  Rambo,  113 
Wyche  v.  Green,  561 
Wyche  v.  Macklin,  682 
Wyman  v.  Ballard,  315 
Wyman  v.  Brigden,  359 
Wyman  v.  Campbell,  116 
Wyman  v.  Heald,  624 
Wynn  v.  Harmon,  544,  548 
Wynne  v.  Morgan,  799 

Y. 

Yancey  v.  Lewis,  849 

Yancey  v.  Tatlock,  291 

Yazel  v.  Palmer,  633 

Yeates  v.  Prior,  47,  241 

Yock  v.  Mann,  519 

Yocum  v.  Foreman.  89,  90 

Yoder  v.  Swearingen,  704 

Yokum  v.  McBride,  229 

Yokum  v.  Thomas,  420 

York  v.  Allen,  458 

York  v.  Gregg,  683,  826 

Yost  v.  Devault,  496 

Youmans  v.  Edgerton,  592 

Young  v.  Bumpass,  238 

Young  v.  Butler,  356,  447,  639 

Young  v.  Clippenger,  340,  545 

Young  v.  Collier,  798 

Young  v.  Figg,  460 

Young  v.  Gower,  301 

Young  v.  Harris,  233,  621,  628,  680, 

696,  700 

Young  v.  Hervey,  782 
Young  v.  Hopkins,  245,  246 
Young  v.  Lillard,  732 
Young  v.  Lofton,  468 
Young  v.  Lorain.  101,  551 
Young  v.  McCherry,  78,  195.  639 
Young  v.  McCorniick,  838 
Young  v.  Paul,  35,  495,  499,  830 
Young  v.  Rathbone.  753 
Young  v.  Sincombe,  615 
Young  v.  Stevens,  695 
Young  v.  Triplett,  381 
Young  v.  Wright,  36 
Youngman  v.  Linn,  667,  670 
Younie  v.  Walrod,   195 

Z. 

Zent  v.  Picken,  256,  258 
Zerfing  v.  Stelig,  644 
Zibley  v.  Sears,  41)6,  497 
Zimmerman  v.  Lynch,  342 
Zimmerman  v.  Owen,  721 
Zollman  v.  Moore,  869 
Zorn  v.  McParland,  812 
Zuenker  v.  Kuehn,  855,  866 


MARKETABLE  TITLE  TO  REAL  ESTATE 


AND 


PURCHASERS  OF  DEFECTIVE  TITLES. 


BOOK    I. 

OF  REMEDIES  IN  AFFIRMANCE  OF  THE  CONTRACT  OF  SALE. 
OF  AFFIRMANCE  BY  PROCEEDINGS  AT  LAW. 

OF  PROCEEDINGS  AT  LAW  WHILE  THE  CONTRACT  IS  EXECUTORY. 

CHAPTER  I. 

INTRODUCTORY. 

Title  to  real  estate  has  been  defined  to  be  "  the  means  whereby 
the  owner  of  lands  hath  the  just  possession  of  his  property,"  l  but 
the  expression  is  commonly  used  in  a  figurative  sense  to  denote  the 
muniments  of  title  of  the  owner,  or  that  whole  body  of  documents 
or  facts  which  evidence  the  just  ownership  of  lands. 

Titles  are  either  (1)  good;  (2)  doubtful;  or  (3)  absolutely  bad. 
A  good  title  consists  in  the  rightful  ownership  of  the  property  and 
in  the  rightful  possession  thereof,  together  with  the  appropriate 
legal  evidence  of  rightful  ownership.2  The  rightful  owner  of  an 
estate  may  be  in  the  rightful  possession  thereof,  but  unless  he  is 
supplied  with  documentary  evidence  of  title,  where  he  holds  by 
purchase,  or  can  prove  his  right  by  the  testimony  of  witnesses  or 
other  instruments  of  evidence,  where  he  holds  as  heir,  that  is,  by 
descent,  his  title  cannot  be  said  to  be  good.  Sir  William  Black- 
stone  declares  that  a  perfect  title  consists  in  the  union  of  the  posses- 

1 1  Co.  Inst.845. 

8  In  Jones  v.  Gardner,  10  Johns.  (N.  Y.)  269,  it  was  said  that  title,  as  between 
vendor  and  purchaser,  means  the  legal  estate  in  fee,  free  and  clear  of  all  valid 
claims,  liens  or  incumbrances  whatever. 


2  MARKETABLE    TITLE    TO   KEAL    ESTATE. 

sion,  the  right  of  the  possession  and  the  right  of  property  in  one 
and  the  same  person.1  This  is  true  in  a  general  sense,  but  the  defi- 
nition scarcely  embraces  all  the  elements  of  a  good  title,  as  that 
term  is  employed  between  vendor  and  purchaser.  A  purchaser  in 
possession  who  has  paid  the  whole  purchase  money,  but  who  has 
not  received  a  conveyance,  may  be  said  to  have  the  possession,  the 
right  of  possession  and  the  right  of  property,  but  not  having 
received  a  deed,  the  indispensable  evidence  of  legal  title  in  such  a 
case,  his  title  cannot  be  said  to  be  good. 

In  our  definition  of  a  good  title  we  have  not  considered  as  an  ele- 
ment the  freedom  of  the  estate  from  liens,  charges  or  incumbrances 
of  any  kind.  Strictly  speaking,  an  incumbrance,  unless  created  by 
deed,  such  as  a  mortgage  or  deed  of  trust,  operates  no  change  in  the 
title,  though  it  is  common,  as  between  vendor  and  purchaser,  to 
speak  of  the  title  as  bad  when  the  estate  is  incumbered.  And  even 
mortgages  and  deeds  of  trust,  though  there  is  in  each  case  a  nom- 
inal transfer  of  the  legal  title,  being  mere  securities  for  the  pay- 
ment of  debts,  are  very  generally  held  to  create  chattel  interests 
only  in  the  mortgagee  or  grantee,  the  legal  title  really  remaining  in 
the  mortgagor  or  grantor.2  But,  while  technically  the  title  to  an 
incumbered  estate  may  be  good,  in  the  sense  that  it  would  support 
an  action  of  ejectment,  a  purchaser,  without  notice  of  the  incum- 
brance, who  by  his  contract  is  entitled  to  demand  a  good  title,  can 
no  more  be  required  to  accept  the  title  if  the  estate  is  incumbered 
than  he  could  be  if  the  paramount  title  were  outstanding  in  a 
stranger. 

Doubtful  titles  are  those  which  turn  upon  some  question  of  law 
or  fact  which  the  court  considers  so  doubtful  that  the  purchaser  will 
not  be  compelled  to  accept  the  title  and  incur  the  risk  of  a  lawsuit 
by  adverse  claimants.  A  subsequent  chapter  of  this  work  is  devoted 
to  the  equitable  doctrine  of  doubtful  titles ;  it  is,  therefore,  deemed 
unnecessary  to  consider  them  further  here.8 

Absolutely  bad  titles  are  those  which  lack  not  necessarily  all,  but 
some  one  or  more  of  the  essentials  of  a  good  title,  and,  as  between 
vendor  and  purchaser,  may  be  such  though  the  paramount  title  be 

1 1  Bl.  Com.  195. 

*  2  Warvelle  Vend.  649. 

»  Post,  ch.  31. 


INTRODUCTORY.  3 

really  in  the  vendor.  Thus,  if  the  vendor,  being  the  rightful 
owner,  is  out  of  possession,  and  an  adverse  claimant  is  wrongfully 
in  possession,  the  title  will  be  bad  so  far  as  the  purchaser  is  con- 
cerned, though  amply  sufficient  to  enable  the  vendor  to  recover  the 
premises  in  ejectment.1 

When  a  purchaser  of  real  property  discovers  that  the  title  is  bad 
he  must  choose  between  a  large  variety  of  measures  which  may  be 
taken  for  his  relief.  The  most  important  thing  to  be  considered,  in 
the  first  place,  is,  whether  the  contract  is  executory  or  executed.  A 
contract  for  the  sale  of  lands  is  said  to  be  executory  until  the  pur- 
chaser has  received  a  conveyance ;  after  a  conveyance  has  been 
made  the  contract  is  said  to  be  executed,  whether  the  purchase 
money  has  or  has  not  been  paid.  If  the  contract  remains  execu- 
tory, he  is  next  to  determine  whether  he  will  adopt  a  remedy  which 
affirms  the  agreement  or  one  which  rescinds  or  disaffirms  the  con- 
tract. If  he  elects  to  affirm,  there  are  several  courses  open  to  him. 
At  law  he  may  maintain  an  action  to  recover  damages  for  a  breach 
of  the  vendor's  express  or  implied  contract  to  convey  a  good  title ; 2 
or,  he  may  buy  in  the  rights  of  one  having  the  better  title,  or  an 
incumbrance  on  the  premises,  and  set  off  the  amount  so  expended 
against  the  vendor's  action  for  the  purchase  money,3  or  for  damages 
for  breach  of  the  contract.4  Or,  if  the  facts  as  to  the  title  were 
falsely  and  fraudulently  represented  to  him,  he  may  keep  the  estate, 
agree  with  the  rightful  owner,  or  take  the  risk  of  eviction,  and 
maintain  against  the  vendor  the  common-law  action  of  trespass  on 
the  case  for  deceit,  or  the  equivalent  of  that  action  under  modern 
codes  of  practice.5  And  lastly,  in  the  way  of  affirmance,  instead 
of  adopting  any  one  of  these  courses,  he  may  file  his  bill  in  equity, 
or  bring  his  equitable  action,  praying  that  he  be  permitted  to  apply 
the  unpaid  purchase  money  to  the  removal  of  objections  to  the 
title,  or  that  he  be  allowed  compensation  for  defects,  and  that  the 
vendor  be  compelled  to  specifically  perform  the  contract,  and  that,  if 
specific  performance  be  impossible,  damages  in  lieu  thereof  be 

1  Post,  §290,  ch.  3L 
*Ch.  2. 
'Ch.  24. 
4  Ch.  2. 
*  Ch.  11. 


4  MARKETABLE    TITLE    TO   SEAL   ESTATE. 

awarded  the  plaintiffs.1     In  all  these  cases  the  purchaser  elects  to 
abide  by  the  contract  and  keep  the  estate. 

Bnt  the  contract  being  still  executory,  the  purchaser,  on  dis- 
covery that  the  title  is  bad,  may  determine  upon  rescission.  To 
rescind  a  contract  is  to  annul  or  abrogate  it,  the  consideration  which 
passed  from  either  party  being  returned,  and  both  parties  being 
placed  in  statu  qua,  that  is,  as  nearly  as  possible  in  the  same  condi- 
tion in  which  they  were  before  they  entered  into  the  contract. 
Rescission  of  an  executory  contract  for  the  sale  of  lands  may  be 
accomplished  in  three  ways :  First,  by  the  act  of  the  parties  them- 
selves.2 The  vendor  may  agree  to  take  back  the  estate  and  to 
permit  the  purchaser  to  keep  the  purchase  money  if  it  has  not  been 
paid.  This  is  frequently  done.  Secondly,  by  proceedings  at  law. 
Of  course  a  court  of  law  proper  is  not  competent  to  pronounce  a 
decree  of  rescission  directing  either  party  to  restore  what  he  has 
received  by  virtue  of  the  contract.  But  the  purchaser  may  simply 
abandon  the  possession  of  the  premises  and  set  up  the  want  of  title 
as  a  defense  when  sued  for  the  purchase  money  ;  *  or,  if  he  has  paid 
a  part  or  the  whole  of  the  purchase  money,  he  may  sue  in  a  court  of 
law  to  recover  it  back,  having  in  the  meanwhile  abandoned  the 
premises  or  restored  them  to  the  vendor.  In  this  way  rescission  is 
virtually  accomplished  at  law. v  Thirdly,  the  purchaser  may  tile  his 
bill  in  equity  on  failure  of  the  title,  praying  that  the  contract  be  in 
terms  rescinded ;  or  to  a  bill  filed  by  the  vendor  for  specific  per- 
formance, he  may  set  up  as  a  defense  the  plaintiffs  want  of  title, 
provided  he  has  restored,  or  offers  to  restore,  the  premises  to  the 
vendor.4  The  rescission  of  executory  contracts  is  peculiarly  a  ground 
of  equitable  jurisdiction.  Courts  of  equity  possess  all  the  machinery 
for  ascertaining  what  is  necessary  to  put  the  parties  in  statu 
quo,  and  to  compel  either  party  to  do  whatever  is  required  to  that 
end. 

So  much  for  the  remedies  of  the  purchaser,  either  by  way  of 
affirmance  or  rescission,  while  the  contract  is  executory.  They  are 
all  co-exidtent,  and  his  choice  of  the  one  or  the  other  is  to  be  con- 

1  Chs.  17,  18  and  19. 

*  Ch.  28. 

»  Ch.  24. 

'Ch.  30.     Newberry  v.  Ruffin,  102  Va.  73;  45  S.  E.  73,  citing  the  text. 


INTRODUCTORY.  5 

trolled  by  the  particular  circumstances  of  his  case.  He  may  con- 
ceive it  to  be  an  advantage  to  him  to  keep  the  estate  with  damages 
or  compensation  for  defects,  or  he  may  deem  it  best  to  restore  the 
estate  and  have  back  his  purchase  money.  But  while  the  remedies 
by  way  of  action  to  recover  back  the  purchase  money  and  action  to 
recover  damages  for  fraudulently  imposing  a  bad  title  on  the  plain- 
tiff are  concurrent,  they  are  not  co-extensive  in  respect  to  the  relief 
that  is  to  be  afforded ;  and  this  should  be  considered  by  the  pur- 
chaser in  choosing  his  remedy.  In  the  former  action  he  recovers  no 
more  than  the  consideration  money  and  interest ;  and  the  same  may 
be  said  of  an  action  to  recover  damages  for  a  breach  of  the  contract 
to  convey  a  good  title,  in  which  there  is  no  averment  of  fraud  on 
the  part  of  the  defendant.1  But  where  the  action  for  damages  is 
expressly  grounded  upon  the  defendant's  fraudulent  representations 
as  to  the  title  or  concealment  of  defects,  and  the  plaintiff  establishes 
his  case,  he  will  be  entitled  to  recover  damages  for  the  loss  of  his 
bargain,  that  is,  the  value  of  the  estate  at  the  time  when  the  con- 
tract should  have  been  completed  by  the  conveyance  of  a  good 
title.8  Therefore,  in  a  case  in  which  the  value  of  the  estate  has 
materially  increased  between  the  inception  of  the  contract  and  the 
time  when  it  should  have  been  completed,  and  the  purchaser  can 
show  that  the  defendant  was  guilty  of  fraud  with  respect  to  the 
title,  he  should  take  care  so  to  frame  his  declaration  or  complaint 
that  his  action  shall  be  the  equivalent  of  the  action  of  deceit  at  com- 
mon law,  so  that  he  may  recover  as  damages  the  increased  value  of 
the  estate. 

The  defenses  or  answers  to  the  purchaser's  application  for  relief 
while  the  contract  is  executory,  most  frequently  met  with  in  the 
reports,  are  that  the  purchaser  in  the  first  instance  agreed  to  take 
the  title  such  as  it  was,  or  that  he  had  since,  by  his  conduct,  waived 
all  objections  to  the  title;8  that  the  vendor  has  the  right  to  perfect 
the  title,4  or  to  require  the  purchaser  to  take  the  title,  with  compen- 
sation for  defects ; 5  that  the  purchaser  has  not  placed  the  vendor 

1  Ch.  10,  §  91. 
•  Ch.  10,  §  97. 
'Ch.  8. 
«Ch.  32. 
•Ch.  38. 


6  MARKETABLE    TITLE    TO    liEAI,    ESTATE. 

in  statu  quo,  and  that  the  positions  of  the  parties  with  respect  to 
the  subject-matter  of  the  contract  have  so  materially  changed  that 
it  will  be  impossible  to  place  them  in  statu  quo ; l  and,  where  the 
gravamen  of  the  action  or  defense  is  the  vendor's  fraud  in  conceal- 
ing the  state  of  the  title,  that  the  defects  complained  of  all  appear 
from  the  public  records,  and  that  the  vendor  is  not  bound  to  call 
the  attention  of  the  purchaser  to  defects  which  are  thus  open  to 
his  inspection.2 

We  have  now  presented  a  brief  outline  of  the  courses  open  to  the 
purchaser,  and  the  attitude  of  the  vendor  on  failure  of  the  title, 
where  the  contract  is  executory.  It  remains  to  indicate,  in  a  like 
manner,  their  respective  rights  and  remedies  where  the  contract  has 
been  executed  by  the  delivery  and  acceptance  of  a  conveyance. 
First,  it  is  to  be  observed  that  except  in  cases  in  which  the  pur- 
chaser has  been  fraudulently  induced  to  enter  into  the  contract  or  to 
accept  a  conveyance,  or  unless  there  has  been  some  such  mistake  as 
will  entitle  him  to  relief,  his  remedies  are  all  necessarily  in  affirm- 
ance of  the  contract,  for,  as  a  general  rule,  there  can  be  no  such 
thing  as  the  rescission  of  an  executed  contract  for  the  sale  of  lands. 
The  reason  is  that  the  parties  can  seldom,  if  ever,  be  placed  in  statu 
quo.  We  shall  see  hereafter,  however,  that  there  is  a  tendency  in 
some  of  the  States  to  modify  this  rule.8  And  not  only  are  the 
remedies  of  the  purchaser,  in  the  absence  of  fraud  or  mistake,  nec- 
essarily in  affirmance  of  the  contract  after  a  conveyance  has  been 
accepted,  but  the  existence  of  those  remedies  themselves  depend 
largely  upon  his  own  foresight  and  prudence.  The  law  protects 
the  purchaser,  at  least  where  the  vendor  sells  in  his  own  right,  by 
its  implication  of  a  contract  that  a  good  title  is  to  be  conveyed,  up 
to  the  time  when  the  parties  are  ready  to  complete  the  contract  by 
the  payment  of  the  purchase  money,  the  delivery  of  possession,  and 
the  execution  and  acceptance  of  a  conveyance.  But  any  implication 
in  his  favor  ceases  at  this  point,  and  to  protect  himself  against  loss 
in  the  future,  in  the  event  that  the  title  shall  prove  bad,  he  must 
see  that  covenants  for  title  by  the  vendor,  adequate  for  that  pur- 
pose, are  inserted  in  the  conveyance.  The  maxim  caveat  emptor 

1  Chs.  25  and  30. 

*  Cb.  11,  §  104. 

*  Ch.  26. 


INTRODUCTORY.  7 

applies.1  This  is  the  rule  which  prevails  in  most  of  the  American 
States,  though  in  some  of  them  it  is  qualified  to  a  certain  extent,  as 
will  be  hereafter  noted.  It  may  be  doubted  whether  a  rigid  applica- 
tion of  this  rule  will  subserve  the  ends  of  justice  in  all  cases, 
particularly  those  in  which  the  purchase  money  remains  unpaid 
when  the  purchaser  is  evicted,  or  when  it  is  discovered  that  the  title 
is  bad.  The  maxim  or  rule  caveat  emptor  has  no  place  in  the  civil 
law.  By  that  law  the  purchaser,  whether  he  has  or  has  not  received 
a  conveyance,  is  always  to  be  reimbursed  if  he  loses  the  estate 
through  a  defect  in  the  title,  unless,  indeed,  it  was  expressly  under- 
stood that  the  title  was  bad,  and  the  purchaser  bought  only  such 
right  or  interest  as  the  vendor  might  have.  At  common  law,  of 
course,  no  hardship  results  in  refusing  relief  to  a  purchaser  who, 
with  knowledge  that  the  title  is  bad,  accepts  a  conveyance  without 
covenants  for  title.  He  simply  gets  what  he  buys,  and  he  has  no 
ground  for  complaint  if  he  loses  the  estate.  But  hardship  does 
often  result  in  cases  in  which  covenants  for  title  were  unintentionally 
omitted,  through  the  ignorance  and  inexperience  of  the  parties  and 
their  advisers,  a  circumstance  likely  to  occur  in  rural  districts,  where 
the  village  blacksmith  frequently  acts  in  the  capacity  of  justice  of 
the  peace  and  legal  adviser  for  the  community.  Assuming,  however, 
that  the  conveyance  contains  the  usual  covenants  for  title,  the 
remedy  of  the  purchaser  is  by  action  for  breach  of  covenant  if  he  be 
evicted,  or  if  the  title  prove  to  be  bad  or  the  estate  incumbered,  in 
which  action  he  will  recover  real  or  nominal  damages,  according  to 
whether  he  has  suffered  real  or  nominal  injury  from  the  breach.  If, 
however,  he  was  fraudulently  induced  to  accept  a  conveyance  with 
covenants  for  title,  he  is  not  obliged  to  bring  his  action  for  breach  of 
covenant,  but  may  have  his  action  on  the  case  for  deceit,  just  as  if 
the  contract  were  executory,  the  better  opinion  being  that  the  ven- 
dor's fraud  is  not  merged  in  his  covenants  for  title.2  And  instead 
of  taking  the  initiative,  and  suing  for  breach  of  covenant,  the  pur- 
chaser may,  where  the  purchase  money  is  still  unpaid,  detain  the 
same  in  his  hands,  and,  when  sued  by  the  vendor,  set  up  the  breach 
of  covenant  as  a  defense  by  way  of  recoupment  or  counterclaim,  pro- 
vided he  has  then  a  present  right  to  recover  substantial,  and  not  merely 

1  Ch.  27. 
»  Ch.  27. 


8  MABKETABLE    TITLE    TO    REAL    ESTATE. 

nominal  damages,  for  breach  of  the  plaintiffs  covenants.1  These, 
then,  are  the  remedies  of  the  purchaser  at  law  by  way  of  affirmance 
of  the  executed  contract.  In  equity  he  may  file  his  bill,  praying 
that  the  grantor  be  compelled  to  perform  specifically  certain  of  the 
covenants  for  title,  for  example,  the  covenant  against  incumbrances, 
by  removing  an  incumbrance  from  the  estate  ;  and  the  covenant  for 
further  assurance,  by  the  execution  of  such  further  assurance  as  may 
be  reasonably  required.2  And  where,  through  error  or  mistake,  the 
conveyance  does  not  contain  such  covenants  for  title  as  the  pur- 
chaser may  demand,  he  may  file  his  bill  praying  that  the  conveyance 
be  reformed,  so  as  to  express  the  true  intention  of  the  parties.3 

We  have  already  observed  that  an  executed  contract  for  the  sale 
of  lands  cannot,  as  a  general  rule,  in  the  absence  of  fraud  or  mis- 
take, be  rescinded,  either  at  law  or  in  equity.  There  is,  however,  a 
certain  kind  of  relief  contended  for  in  some  cases  at  law,  which,  if 
conceded,  amounts  to  a  virtual  rescission  of  the  contract.  The  gen- 
eral rule  is  that  in  an  action  for  breach  of  the  covenant  of  seisin  the 
plaintiff  can  recover  nominal  damages  only,  unless  he  has  been 
actually  or  constructively  evicted  from  the  premises.  This  rule, 
however,  has  been  modified  in  some  of  the  States,  and  the  pur- 
chaser permitted  to  recover  the  whole  consideration  money,  pro- 
vided he  has  reconveyed  the  estate  to  the  grantor.  This  of  itself 
practically  amounts  to  a  rescission  of  the  contract.  And  if  he  may 
thus  recover  the  consideration  money  as  damages  in  an  action  for 
breach  of  the  covenant  of  seisin,  no  reason  is  perceived  why  he 
may  not  avail  himself  of  that  breach  as  a  defense  when  sued  for 
the  purchase  money,  provided,  of  course,  that  he  reconveys  or 
offers  to  reconvey  the  premises  to  the  plaintiff.  The  effect  would 
be  merely  to  avoid  circuity  of  action.4  But  the  contrary  rule, 
namely,  that  a  breach  of  the  covenant  of  seisin  is  no  defense  to  an 
action  for  the  purchase  money  unless  the  defendant  has  been  actu- 
ally or  constructively  evicted  from  the  estate  is  undoubtedly  estab- 
lished in  most  of  the  American  States.5 

1  Ch.  16. 
» Ch.  21. 
•  Ch.  22. 
«Ch.  26. 
•Ch.16. 


INTRODUCTOnY.  9 

.  As  to  the  rescission  of  an  executed  contract  on  the  ground  of 
fraud  or  mistake,  it  is  only  necessary  to  say  that  this  is  one  of  the 
principal  heads  of  equitable  jurisdiction.1  The  vendor's  fraud  is 
not  merged  in'  his  covenants  for  title.  Equitable  relief  is  also  given 
the  purchaser  by  way  of  injunction  against  proceedings  to  collect 
the  purchase  money  where  the  grantor  is  insolvent  or  a  non- 
resident, in  which  case  there  is  no  adequate  remedy  upon  the  cove- 
nants for  title.8  And  in  one  or  two  of  the  States  this  relief  is 
afforded  on  a  clear  failure  of  the  title  without  even  a  suggestion  of 
non-residence  or  insolvency  of  the  grantor.8  This,  of  course,  is 
equivalent  to  a  rescission  of  the  contract  if  the  injunction  is  made 
perpetual. 

The  defenses  to  the  purchaser's  measures  for  relief  on  failure  of 
the  title,  where  the  contract  has  been  executed,  most  frequently  met 
with  in  the  reports,  are  that  the  purchaser  accepted  a  conveyance 
without  covenants  for  title,  or  that  the  covenants  have  not  been 
broken,  or,  at  least,  that  there  has  been  no  such  breach  as  will  entitle 
the  purchaser  to  substantial  damages ;  or  that  the  right  to  recover 
for  a  breach  of  covenants  executed  by  the  defendant  as  a  remote 
grantor  did  not  pass  to  the  plaintiff,  being  a  chose  in  action,  and 
incapable  of  assignment  at  common  law;  or  that  the  paramount 
title  was  acquired  by  the  defendant  after  the  conveyance  was  exe- 
cuted, and  had,  by  operation  of  law,  inured  to  the  benefit  of  the  plain- 
tiff and  taken  away  his  right  of  action ;  or,  in  a  case  of  alleged  fraud, 
that  the  plaintiff  by  his  conduct  had  waived  all  ground  of  complaint, 
or  that  there  was  in  fact  no  fraud,  the  true  state  of  the  title  being 
apparent  from  the  public  records,  which  the  purchaser  will  be  r: 
sumed  to  have  examined. 

From  the  foregoing  outline  of  the  remedies  of  the  purchase* 
and  the  defenses  of  the  vendor  on  failure  of  the  title,  the  utility 
and  convenience  of  the  plan  or  analysis  of  this  work,  p.nd  the  ordei 
in  which  those  remedies  and  defenses  are  treated,  will  be  perceived 
The  term  "  marketable "  or  "  defective "  title,  as  between  vendoi 
and  purchaser,  is  relative  as  well  as  substantive,  and  has  reference 
alike  to  the  remedies  of  the  parties,  the  incidents  of  those  remedies 

1  Ch.  85. 

«Ch.  34. 
«Ch.34,  §837. 


10  MARKETABLE    TITLE    TO"   SEAL    ESTATE. 

and  the  essential  elements  of  a  good  title.  Accordingly,  it  has  been 
deemed  proper  and  convenient  to  consider,  under  that  head,  not  only 
the  equitable  doctrine  of  marketable  title  proper,  but  the  law  of 
covenants  for  title,  the  nature  and  incidents  of  each  of  those  cove- 
nants, the  extent  to  which  they  run  with  the  land,  the  doctrine  of 
estoppel,  or  after-acquired  title,  and  the  specific  performance  of 
covenants  for  title,  as  well  as  the  specific  performance  of  executory 
contracts  for  the  sale  of  lands.  The  subject  of  the  work  naturally 
divides  itself  into  the  two  principal  heads  of  remedies  in  affirmance, 
and  remedies  in  rescission  of  the  contract,  together  with  their  inci- 
dents. One  advantage  anticipated  from  this  classification  is  that  it 
will  serve  to  impress  upon  the  mind  of  the  student  the  cardinal 
principle  that  the  purchaser  cannot,  because  the  title  is  bad  or  doubt- 
ful, escape  the  obligation  his  contract,  and  at  the  same  time  retain 
its  benefits.  Restitution  of  the  consideration  on  one  side,  and  of 
the  subject-matter  of  the  contract  on  the  other,  is  an  invariable  con- 
dition precedent  to  rescission. 


CHAPTER  II. 

ACTION  FOR  BREACH  OF  CONTRACT. 

GENERAL  PRINCIPLES.    FORM  OF  ACTION.    §  1. 
DOUBTFUL  TITLE  IN  ACTION  FOR  DAMAGES.     §  2. 
PURCHASER  IN  POSSESSION  MAT  SUE.     §  3. 

DEFENSES  TO  THE  VENDOR'S  ACTION  FOR  BREACH  OF  CON- 
TRACT.   §  4. 

§  1.  GENERAL  PRINCIPLES.  FORM  OF  ACTION.  Usually  a 
contract  for  the  sale  of  real  estate  allows  time  for  the  exami- 
nation of  the  title,  and  fixes  a  day  in  the  future  for  the  pay- 
ment of  the  purchase  money  and  the  execution  of  a  conveyance.1 
If,  when  that  day  arrives,  the  purchaser  shall  have  performed,  or 
offered  to  perform,  everything  on  his  part  necessary  to  entitle  him 
to  a  conveyance,  and  the  vendor  be  unable  to  convey  such  a  title  as 
the  purchaser  may  demand,  the  contract  is  broken,  and  the  pur- 
chaser iaa&  much  entitled  to  an  action  for  damages  as  if  the  vendor, 
being  able  to  convey  a  good  title,  had  willfully  refused  to  perform 
the  contract.2  If  the  contract  was  not  under  seal  the  proper  action 
for  the  breach  will  be  trespass  on  the  case  in  assumpsit ; 3  if  the  con- 
tract was  under  seal,  as  in  the  case  of  a  title  bond,  the  proper  action 
will  be  covenant.1 

In  most  cases  the  purchaser  may  elect  between  his  right  to  recover 

1  In  Bennet  v.  Fuller,  29  La.  Ann.  663,  a  distinction  was  drawn  between  an 
actual  sale  and  a  contract  "to  sell  on  a  future  day; "  but  the  court  held  that  if, 
in  the  latter  case,  at  the  appointed  day  the  vendor  was  unprepared  to  sell  and 
convey  a  clear  title,  he  would  be  liable  in  damages. 

8 1  Sudg.  Vend.  (8th  Am.  ed.)  357  (236). 
Bac.  Abr.  Assumpsit  (C). 

*3  Bl.  Com.  155;  Haynes  v.  Lucas,  50  111.  436.  But  he  may  recover  back  the 
purchase  money  under  the  common  counts,  though  the  contract  was  under  seal. 
Greville  v.  Da  Costa,  Peake  Add.  Cas.  113.  In  a  suit  on  a  title  bond  conditioned 
to  make  title  as  soon  as  procured  by  the  vendor,  the  complaint  will  be  fatally 
defective  if  it  do  not  allege  that  the  vendor  had  obtained  the  title.  Stone  v. 
Young,  4  Kans.  11.  In  such  a  suit  an  averment  that  the  defendant  failed  and 
refused,  and  still  fails  and  refuses  to  perform  the  stipulations  and  conditions  of 
the  bond,  is  sufficient  under  the  Code.  Holman  v.  Criswell,  15  Tex.  895,  the 
court  saying  that  the  common-law  rule,  contra,  in  1  Chitty  PI.  863  does  not  apply 
to  the  system  of  Code  pleading  in  Texas. 


12  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

damages  for  breach  of  the  contract  in  failing  to  convey  a  good  title 
and  his  right  to  rescind  the  contract  and  recover  back  the  purchase 
money,  or  such  part  thereof  as  may  have  been  paid ;  and  where  the 
contract  is  not  under  seal,  the  form  of  action  is  the  same  in  either 
cage  —  trespass  on  the  case  in  assumpsit.  The  two  causes  of  action, 
however,  must  not  be  confounded,  as  seems  sometimes  to  have  been 
done.  The  action  of  assumpsit  is  adapted  to  the  recovery  of 
moneys  due  by  implied  contract,  and  also  to  the  recovery  of  dam- 
ages for  the  breach  of  a  contract,  but  the  plaintiff  must  so  frame  his 
declaration  as  to  entitle  him  to  the  particular  relief  desired.  Thus, 
if  he  desires  merely  to  recover  back  the  purchase  money,  ignoring  the 
contract  and  treating  the  purchase  money  as  so  much  money  paid 
out  to  the  use  and  benefit  of  the  vendor,  he  will  employ  the  com- 
mon money  counts,  while,  if  he  intends  to  affirm  the  contract  he 
will  set  out  the  substance  of  it  in  his  declaration,  and  claim  dam- 
ages for  the  breach.1  He  may,  however,  if  he  chooses,  employ  the 
money  counts  and  add  a  count  upon  the  contract,  so  that  if  his 
proof  fails  him  upon  the  one  count  it  may  entitle  him  to  recover 
upon  the  other.2  Thus  proof  that  the  title  is  merely  doubtful  and 
not  absolutely  bad  will  entitle  the  purchaser  to  have  back  his  pur- 
chase money,  but  would  give  him  no  right  to  damages,8  and,  accord- 
ing to  the  English  decisions,  he  could  not  under  the  common  counts 
recover  back  the  costs  of  examining  the  title.4  The  rule  that  the 

'Chitty  Cont.  (10th  Am.  ed.)  339;  1  Sugd.  Vend.  (8th  Am.  ed.)  537  (358). 

«  See  Camfield  v.  Gilbert,  4  Esp.  221.  In  Doherty  v.  Dolan,  65  Me.  87;  20  Am. 
Rep.  667,  the  purchaser,  after  paying  $1,000  of  the  purchase  money,  brought  an 
action  against  the  vendor  for  damages,  alleging  inability  to  convey  a  good  title. 
In  Maine  the  measure  of  damages  in  such  a  case  is  the  value  of  the  land  at  the 
time  the  conveyance  should  have  been  made,  and  where  part  of  the  purchase 
money  has  been  paid,  the  plaintiff  is  entitled  to  recover  this  value,  less  what 
remains  due  on  the  contract  price.  The  necessary  consequence  of  this  rule  is 
that  where  part  payment  has  been  made  and  the  value  of  the  land  has  decreased, 
and  is  less  at  the  time  fixed  for  performance  than  the  contract  price,  the  plaintiff 
will  not  be  entitled  to  recover  as  damages  as  much  as  he  has  paid  on  the  hind. 
To  obviate  this  difficulty,  the  plaintiff  in  this  case  was  permitted  to  amend  his 
declaration  by  adding  a  count  for  money  had  and  received,  under  which  he  might 
recover  all  that  he  had  paid  on  the  contract. 

*  Ingaus  v.  Hahn,  47  Hun  (N.  Y.),  104, 

*  1  Sugd.  Vend.  (8th  Am.  ed.)  547  (362);  Chit.  Cont.  (10th  Am.  ed.)  339;  Chit 
PI.  (2d  ed.)  196,  n. 


ACTION    FOR    BREACH    OF    CONTRACT.  13 

extent  of  the  purchaser's  recovery  is  to  be  governed  by  the  nature 
of  the  relief  sought,  that  is,  whether  in  affirmance  or  disaffirmance 
of  the  contract,  prevails,  it  is  apprehended,  as  well  under  the  Code 
practice  as  at  common  law.  The  petition  or  complaint  should  be 
so  drawn  as  to  indicate  whether  the  plaintiff  seeks  merely  to  recover 
back  the  purchase  money  or  whether  he  claims  damages  for  breach 
of  the  contract. 

The  remedy  by  action  for  breach  of  contract  is  concurrent  with 
the  action  of  deceit  when  fraud  exists,1  but  is  seldom  resorted  to  in 
such  a  case,  the  plaintiff  being  entitled  to  a  greater  measure  of  dam- 
ages in  the  action  of  deceit.  He  may  also  elect  between  these 
remedies  and  his  remedy  in  equity  by  suit  for  rescission,2  or  for 
specific  performance,  or  damages  in  lieu  thereof.8  But  the  action 
for  damages  is  broader  than  the  latter  remedy,  for  the  purchaser's 
bill  is  frequently  dismissed  without  prejudice  to  his  remedy  at  law 
on  the  contract.4  Where  the  purchaser  may  elect  between  several 
remedies  he  cannot,  of  course,  be  required  to  adopt  one  in  prefer- 
ence to  another.5  Nor,  if  the  purchaser  has  a  right  to  recover 
damages  for  breach  of  the  contract,  can  the  vendor  insist  upon  tak- 
ing back  the  property  and  returning  the  consideration.  It  is  with 
the  purchaser  to  say  whether  he  will  affirm  or  rescind  the  contract.' 

1  2  Warvelle  Vend.  955;  Lynch  v.  Merc.  Trust  Co..  18  Fed.  Rep.  486. 

3  Reese  v.  Kirk,  29  Ala.  406;   Alvarez  v.  Brannan,  7  Gal.  503;   68  Am.  Dec. 
274;  Wright  v.  Carillo,  22  Cal.  604. 

'Haynes  v.  Farley,  4  Port.   (Ala.)   528;  Greene  v.  Allen,  32  Ala.  215. 

4Sugd.  Vend.   (8th  Am.  ed.)    357. 

•Barron  v.  Easton,  3  Iowa,  76;  Katz  v.  Henig,  66  N.  Y.  Supp.  530;   32 
Misc.  672. 

•  Lynch  v.  Merc.  Trust  Co.,  18  Fed.  Re.p.  486 ;  Kmmm  v.  Beach,  96  N.  Y. 
406,  the  court  saying:  "The  contention  of  the  vendors  is  that  the  defrauded 
vendee  has  but  one  remedy,  and  that  consisted  of  a  rescission  of  the  contract  and 
the  recovery  back  of  the  consideration  paid,  after  an  offer  to  reconvey  and  a 
tender  of  what  had  been  received.  Doubtless  this  remedy  existed,  but  the  vendee 
was  not  compelled  to  adopt  it.  He  had  a  right,  instead  of  rescinding  the  con- 
tract, to  stand  upon  it  and  require  of  the  vendor  its  complete  performance,  or 
such  damages  as  would  be  the  equivalent  of  that  complete  performance.  '  The 
vendee,  acting  honestly  on  his  own  part,  was  entitled  to  the  full  fruit  of  his  bar- 
gain, and  could  not  be  deprived  of  it  without  his  consent  by  the  fraud  of  the 
vendor.  That  such  an  action,  proceeding  upon  an  affirmance  of  the  contract  as 
actually  made,  founded  upon  actual  fraud,  and  asking  damages  in  the  room  of 
an  impossible  specific  performance,  can  be  maintained  at  law,  has  been  sufficiently 
adjudged.  Wardell  v.  Fosdick,  13  Johns.  (N.  Y.)  335;  7  Am.  Dec.  383;  Culver 


14  MARKETABLE    TITLE    TO   REAL    ESTATE. 

But,  having  recovered  a  judgment  for  damages  in  an  action  for 
breach  of  the  contract  to  convey,  he  cannot  afterward  bring  a  sert- 
ond  action  or  resort  to  any  other  means  to  enforce  the  contract.1 
If  he  elects  to  rescind  he  cannot  afterwards  affirm  the  contract  and 
vice  versa?  There  can  be  but  one  satisfaction  of  the  injury. 

Under  the  English  common-law  system  of  pleading  the  pur- 
chaser's expenses  incurred  in  examining  the  title  could  not  be  recov- 
ered by  him  if  he  disaffirmed  the  contract  and  brought  his  action  to 
recover  back  his  deposit  as  such ;  it  was  necessary  for  him  to  insert 
a  count  in  the  declaration  claiming  damages  for  breach  of  the  con- 
tract.8 The  reason  for  this  rule  was  that  moneys  so  paid  out  could 
not  be  regarded  as  paid  out  to  the  vendor's  use,  but  were  expended 
for  the  purchaser's  own  satisfaction.  Perhaps  the  same  rule  would 
be  applied  in  America  in  a  case  in  which  the  pleadings  demand  only 
a  return  of  the  purchase  money  and  contain  no  demand  for 


images.* 

If  the  purchaser  accept  a  conveyance  of  the  premises,  he  cannot 

v.  Avery,  7  Wend.  (N.  Y.)  386;  22  Am.  Dec.  586;  Whitney  v.  Allaire,  1  Comst. 
(N.  Y.)  305;  Clark  v.  Baird,  9  N.  Y.  197;  Graves  v.  Spier,  58  Barb.  (N.  Y.)  385. 
And  that  is  so  whether  the  representations  relate  to  the  title  or  to  matters  col- 
lateral to  the  land.  The  measure  of  damages  in  such  a  case  is  full  indemnity  to 
the  injured  party;  the  entire  amount  of  his  loss  occasioned  by  the  fraud." 

1 1  Sudg.  Vend.  (8th  Am.  ed.)  357  (236);  Orme  v.  Boughton,  10  Bing.  537;  25 
E.  C.  L.  254;  Hopkins  v.  Lee,  6  Wheat.  (U.  8.)  109;  Buckmaster  v.  Grundy,  3 
Gil.  (HI-)  626,  636;  Hill  v.  Hobart,  16  Me.  169. 

•Schiffer  v.  Dietz,  83  N.  Y.  300,  308,  citing  Mason  v.  Bovet,  1  Den.  (N.  Y.) 
69;  43  Am.  Dec.  651  ;  Cobb  v.  Hatfield,  46  N.  Y.  533;  Lawrence  v.  Daie,  3 
Johns.  Ch.  (N.  Y.)  23.  Remedies  in  affirmance  and  remedies  in  disafflrmance  or 
rescission  of  the  contract  are  non-concurrent  and  inconsistent  with  each  other. 
Bowen  v.  Mandeville,  95  N.  Y.  240. 

3Sugd.  Vend.  (8th  Am.  ed.)  547  (362);  1  Chit.  Cxmt.  (10th  Am.  ed.)  339  ;  Cam- 
field  v.  Gilbert,  4  Esp.  221. 

4  In  the  State  of  New  York  the  cases  do  not  show  that  this  distinction  has  been 
observed.  An  action  there  for  damages  in  failing  to  perform  the  contract  to 
convey  a  good  title  seems  to  be  regarded  as  in  effect  the  same  as  an  action  to 
recover  back  the  purchase  money  eo  nomine,  probably  because  in  such  an  action 
the  damages  are,  as  a  general  rule,  limited  to  the  purchase  money  paid,  interest, 
costs  and  expenses.  There  can  be  no  question,  however,  as  to  the  right  to 
recover  the  expenses  of  examining  the  title  as  a  part  of  the  damages.  Higgins 
v.  Eagleton,  34  N.  Y.  Supp.  225.  See  post,  §  93.  The  expenses  of  examining 
the  title  may  be  recovered  in  an  action  to  recover  back  the  deposit.  Effen- 
heim  v.  Von  Hafen,  23  N.  Y.  Supp.  348  (N.  Y.  City  Court). 


ACTION    FOR    BREACH    OF    CONTRACT.  15 

afterwards  maintain  an  action  to  recover  damages  from  the  vendor 
for  breach  of  his  contract  to  convey  a  good  title.  His  remedy  is 
upon  the  covenants  of  his  deed  if  any.  If  there  are  no  covenants, 
he  is,  in  the  absence  of  fraud  or  mistake,  without  remedy.1 

If  the  title  fail,  the  purchaser  by  bringing  an  action  for  damages 
affirms  the  contract,  and  will  not  be  entitled  to  recover  unless  he 
shows  that  he  has  performed  his  part  of  the  contract  by  tender  or 
payment  of  the  purchase  money  in  full.  If  the  purchase  money 
be  not  paid  in  full,  he  should  bring  an  action  for  money  had  and 
received  to  his  use  (trespass  on  the  case  in  assumpsit),  which  dis- 
affirms the  agreement.2  This  distinction  appears  not  to  be  observed 
in  those  States  in  which  the  common-law  system  of  pleading  has 
been  abolished.  Thus,  in  New  York  it  has  been  held  that  if  the 
vendor  be  unable  to  make  title  at  the  time  fixed  for  completing  the 
contract,  the  purchaser  is  not  in  default  in  failing  to  tender  the  pur- 
chase money,  and  may  maintain  an  action  for  damages  though  no 
such  tender  has  been  made.8  If  the  parties  agree  to  rescind  the 
contract,  and  the  vendor  fails  to  return  the  purchase  money,  the 
purchaser  cannot  maintain  an  action  for  breach  of  the  contract  and 
recover  back  his  purchase  money  in  the  form  of  damages.  He 
should  sue  in  assumpsit  for  money  had  and  received  to  his  use,  or 
frame  his  complaint  upon  that  hypothesis  in  States  in  which  the 
common-law  system  of  pleading  no  longer  exists.4  If  no  time  be 
fixed  by  the  contract  in  which  the  vendor  must  convey,  he  will  be 
entitled  to  a  reasonable  time,  after  the  payment  of  the  purchase 
money,  in  which  to  execute  the  conveyance.5  We  will  consider 

1  Shurtz  v.  Thomas,  8  Barr  (Pa.),  368;  Carter  v.  Beck,  40  Ala.  599. 

*  Clarke  v.  Locke,  11  Humph.  (Tenn.)  300;  Hurst  v.  Means,  2  Swan  (Tenn.), 
594.  But  see  1  Sugd.  Vend.  (8th  Am.  ed.)  357  (236)  where  it  is  said  that  "  if  the 
purchaser  has  paid  any  part  of  the  purchase  money  "  and  the  seller  does  not  com- 
plete his  engagement,  the  former  may  have  his  action  for  damages.  Humpkey 
v.  Norris,  (Ky.)  7  S.  W.  Rep.  888. 

1  Morange  v.  Morris,  34  Barb.  (N.  Y.)  311.  This  proposition,  it  is  conceived, 
must  be  strictly  limited  to  those  cases  in  which  the  contract  expressly  requires 
the  vendor  to  remove  incumbrances  or  other  objections  to  the  title  before  the 
time  fixed  for  completing  the  contract,  else  it  will  conflict  with  that  eminently 
just  and  reasonable  rule  that  the  vendor  may  rely  upon  the  unpaid  purchase 
money  as  a  means  with  which  to  discharge  incumbrances.  Post,  §  308. 

4  Conley  v.  Doyle,  50  Mo.  234. 

1  Eames  v.  Savage,  14  Mass.  428;  Newcomb  v.  Brackett,  16  Man.  166. 


16  MARKETABLE    TITLE    TO   REAL   ESTATE. 

elsewhere  under  what  circumstances  the  vendor  will  be  allowed  time 
in  which  to  remove  objections  to  the  title.1 

In  another  part  of  this  work  it  has  been  attempted  to  show  that 
wherever  the  purchaser  seeks  relief  from  the  obligation  of  the  con- 
tract, or  to  assert  a  liability  against  the  vendor,  on  the  ground  that 
the  title  is  bad,  the  duty  devolves  upon  him  to  point  out  the  par- 
ticulars in  which  the  title  is  wanting.2  This  rule  especially  applies 
in  an  action  for  breach  of  contract  to  convey  a  good  title.3 

In  America  actions  to  recover  damages  on  the  ground  that  the 
vendor  is  unable  to  convey  a  good  title,  are  comparatively  infrequent, 
while  the  reports  teem  with  cases  in  which  the  purchaser  seeks  to 
rescind  the  contract  and  recover  back  his  purchase  money.  The 
reasons  for  the  comparative  disuse  of  the  action  affirming  the  con- 
tract and  seeking  damages  for  the  breach,  doubtless  are  that  prac- 
tically the  same  relief  is  obtained  in  the  action  to  recover  back  the 
purchase  money,  since,  as  a  general  rule,  the  purchaser  could  not 
recover  damages  in  excess  of  the  purchase  money ;  and  in  the  latter 
action  the  purchaser  is  not  obliged  to  show  that  he  has  fully  per- 
formed the  contract  on  his  part  by  payment  of  the  entire  purchase 
money,4  nor  to  show  that  the  title  is  absolutely  bad  and  not  merely 
doubtful,  as  he  must  do  where  he  affirms  the  contract.5  Where, 
however,  the  contract  provides  for  liquidated  damages  in  excess  of 
the  purchase  money,  or  where  by  the  law  of  the  jurisdiction  the 
purchaser  is  entitled  to  recover  damages  in  excess  of  the  purchase 
money,  that  is,  damages  for  the  loss  of  his  bargain,  he  may  find  it 
to  his  advantage  to  bring  his  action  on  the  contract. 

§  2.  DOUBTFUL  TITLE  DT  ACTION  FOB,  DAMAGES.  A  dis- 
tinction is  to  be  observed  between  the  action  to  recover  damages  for 
breach  of  the  contract  or  failure  of  the  title  and  an  action  to  recover 
back  the  purchase  money  in  this  respect,  namely,  that  in  the  former 
action  the  plaintiff  cannot  recover  unless  he  shows  that  the  title  is 

1  Post,  ch.  32. 

*  Post,  §§  117,  244,  281.     There  are  many  cases  which  sustain  this  view.     But 
see  Wilson  v.  Hoiden,  16  Abb.  Pr.  (N.  Y.)  133,  where  it  is  intimated  that  if  the 
defense  of  defective  title  is  made  in  an  action  by  the  vendor  for  breach  of  the 
contract,  the  burden  devolves  on  him  to  show  a  good  title. 

*  Gammon  v.  Blaisdell,  45  Kans.  221. 

4  Hurst  v.  Meats,  2  Swan  (Tenn.),  594.  * 

*  Post,  §  2. 


ACTION    FOR    BREACH    OF    CONTRACT.  17 

Absolutely  bad,  while  in  the  latter  he  will  be  entitled  to  a  return  of 
the  purchase  money  if  there  be  a  reasonable  doubt  about  the  title.1 
So  far  as  the  measure  of  relief  is  concerned,  the  distinction  is  unim- 
portant except  where,  by  express  contract  between  the  parties  or 
by  the  law  of  the  jurisdiction,  the  purchaser  would  be  entitled  to 
recover  damages  in  excess  of  the  purchase  money,  the  general  rule 
•being  that  the  purchaser  can  recover,  in  the  action  for  damages, 
nothing  beyond  the  purchase  money  and  interest.  But  in  respect 
to  the  remedy  and  the  pleadings  the  distinction  is  vitally  important ; 
for  if  he  declares  upon  the  contract  and  claims  damages  for  the 
breach,  arid  the  evidence  shows  that  the  title  is  merely  doubtful,  he 
-can  recover  nothing  ;  while,  if  he  had  counted  for  money  had  and 
received  to  his  use,  he  would  have  been  entitled  to  judgment. 

§  3.  PURCHASER  IN  POSSESSION  MAY  MAINTAIN  ACTION. 
It  will  be  seen  hereafter  that  a  purchaser  cannot,  on  failure  of  the 
title,  disaffirm  the  contract  and  recover  back  the  purchase  money 
unless  he  has  been  evicted  or  has  surrendered  the  premises  to  the 
vendor.5  But  no  such  rule  applies  when  he  affirms  the  contract 
and  brings  an  action  to  recover  damages  for  the  vendor's  breach  in 
failing  to  convey  a  good  title.  By  affirming  the  contract  he  elects 
to  hold  himself  answerable  to  the  true  owner.  He  is  under  no 
obligation  to  rescind  on  failure  of  the  title.  He  may  rely  on  his 
vendor's  agreement  to  make  a  good  title  and  take  the  chances  of 
eviction  by  an  adverse  claimant.3  Hence  it  has  been  held  that  the 
purchaser's  possession  of  the  premises  is  immaterial  and  cannot 
affect  his  right  to  maintain  his  action  for  damages  and  to  recover 
.substantial  and  not  merely  nominal  damages.4 

'In^nlls  v.  Hahn,  47  Hun  (N.  Y.),  104;  Post,  §  286,  "Doubtful  Titles  at 
Law."  Roberts  v.  McFadden,  (Tex.  Civ.  App.)  74  S.  W.  105,  citing  the  text. 

-Post,  eh.  25. 

3  Oakos  v.   Buckley,  49   Wis.   592. 

1  Bedell  v.  Smith,  37  Ala.  619.  The  reasons  for  this  rule  were  thus  stated  by 
ALLEN,  J.,  in  Fletcher  v.  Button,  6  Barb.  (N.  Y.)  646,  which  was  »n  action  to 
recover  damages  for  the  vendor's  refusal  to  convey  for  want  of  title:  "It  is 
insisted  that  the  plaintiff,  being  in  possession  of  the  premises  up  to  the  time  of 
the  commencement  of  the  action,  he  can  recover  but  nominal  damages;  that 
Actual  eviction  was  necessary  to  entitle  him  to  recover  the  entire  purchase  money 
by  way  of  damages  for  the  non-conveyance.  I  am  unable  to  discover  upon  what 
principle  the  possession  of  the  premises  by  the  plaintiff  can  affect  his  remedy  in 
this  action.  The  contract,  for  the  nou- performance  of  which  this  action  is 
3 


18  MARKETABLE    TITLE    TO    REAL   ESTATE. 

§  4.  DEFENSES  TO  THE  VENDOR'S  ACTION  FOB  BREACH  OF 

CONTRACT.  If  the  vendor  should  bring  an  action  to  recover  dam- 
ages for  breach  of  the  contract,  the  purchaser  may,  of  course,  set 
up  the  defense  that  the  plaintiff  has  no  title,1  or  that  the  title  is- 
doubtful,2  or  that  the  estate  is  incumbered,3  or  that  the  plaintiff  has 
made  fraudulent  representations4  in  respect  to  the  title.  Inasmuch 
as  such  an  action  is  rarely,  if  ever,  brought  in  cases  in  which  the 
contract  has  been  partly  performed  by  delivery  of  the  possession  to- 
the  purchaser,  it  seldom  happens  that  the  right  of  the  latter  to- 
show  a  want  of  title  in  the  vendor  is  complicated  with  any  question 

brought,  was  for  the  title  to,  and  not  the  possession  of,  the  premises.  The 
possession  of  the  premises  could  not  have  been  in  part  performance  of  such' 
contract;  and  although  it  may  have  been  beneficial  to  the  plaintiff,  it  did  not 
at  all  mitigate  the  damages  sustained  by  him  by  the  inability  or  unwilling- 
ness of  the  defendant  to  convey  the  premises.  Again,  if  the  defendant  had 
title  to  the  premises  and  a  right  to  convey  them,  and  has  willfxilly  refused  to 
perform  his  contract,  he  has  done  so  in  his  own  wrong,  and  has  voluntarily 
placed  himself  in  a  position  in  which  he  may  lose  the  use  of  the  premises  for 
the  time  during  which  the  plaintiff  has  occupied  them ;  but  he  cannot  be  per- 
mitted by  his  own  wrongful  act  to  change  the  character  of  the  possession  of 
the  plaintiff  and  make  him  a  tenant  against  his  will  instead  of  a  vendee  in 
possession  under  a  contract  of  purchase.  If  the  defendant  was  not  the  owner, 
but  had  the  right  to  occupy,  or  permit  the  plaintiff  to  occupy  the  premises,, 
then  having  contracted  to  convey  them  to  the  plaintiff  and  suffered  him  to  go 
into  possession  under  the  contract,  although  he  may  have  acted  under  a  mis- 
take, still  he  must  bear  the  consequences  of  that  mistake.  The  plaintiff  had 
a  right  to  suppose  that  the  defendant  was  familiar  with  his  own  title,  and 
had  the  right  to  sell  what  he  agreed  to  convey.  If  the  defendant  neither 
owned  the  premises  nor  had  the  right  to  occupy  them,  or  to  suffer  the  plain- 
tiff to  occupy  them,  then  it  is  very  clear  that  he  should  not  in  any  manner 
have  the  benefit  of  the  possession  by  the  plaintiff.  The  plaintiff,  by  his  occu- 
pation, has  made  himself  a  trespasser,  and  is  liable  to  the  true  owner  for  the 
value  of  such  occupation."  See,  also,  Haynes  v.  Farley,  4  Port.  (Ala.)  528; 
Gray  v.  Mills,  83  Fed.  824. 

'2  Warvelle  Vend.  963;   Lewis  v.  White,  16  Ohio  St.  444. 

2  Post,  ch.  31. 

3  Gilbert  v.  Cherry,  57  Ga.   129.     If  the  purchaser  rejects  the  title  on  the 
ground  that  the  property  is  incumbered,  the  fact  that  the  seller  had  perfected 
an   arrangement   to   discharge   the   incumbrance   out  of   the   purchase-money, 
does  not  support  his  action  for  damages,  in  the  absence  of  anything  to  show 
that  the  purchaser  was  advised   of   the  arrangement  and   refused  to  permit 
reasonable  steps  to  be  taken  for   its  consummation.     Manitoba   Fish   Co.   v. 
Booth,  109  Fed.  394   (C.  C.  A.). 

4  Gilbert  v.  Cherry,  57  Ga.  129. 


ACTION"    FOR   BREACH    OF    CONTRACT.  19 

as  to  the  restoration  of  the  premises  to  the  plaintiff,  or  as  to  diffi- 
culty in  placing  him  in  statu  quo.  If,  however,  such  an  action 
should  be  brought  after  possession  delivered  to  the  purchaser, 
instead  of  an  action  to  recover  the  purchase  money  or  to  compel 
specific  performance,  it  is  apprehended  that  the  defense  of  want  of 
title  in  the  vendor,  amounting  in  substance  to  an  election  to 
rescind  the  contract,  could  not  be  made  without  surrendering,  or 
offering  to  surrender,  the  premises  to  the  plaintiff. 

The  vendor  can  maintain  no  action  against  the  purchaser  for 
breach  of  the  contract  to  purchase,  until  after  the  expiration  of  the 
time  fixed  for  completing  the  contract,  even  though  the  purchaser 
has  absolutely  refused  to  perform  or  accept  performance  of  the 
contract.1  Until  the  time  arrives  when,  by  the  terms  of  the  agree- 
ment, the  vendor  is  or  might  be  entitled  to  performance,  he  can 
suffer  no  injury  or  deprivation  which  can  form  a  ground  of  dam- 
ages.2 If  a  purchaser  of  lands,  to  be  conveyed  free  of  incum- 
brances,  absolutely  refuse  to  take  a  deed  or  to  accept  performance 
of  the  contract  on  grounds  other  than  failure  of  the  title,  or  the 
existence  of  an  incumbrance  upon  the  premises,  he  cannot  after- 
wards, when  sued  for  a  breach  of  the  contract,  avail  himself  of 
defects  in  the  deed  which  was  tendered  to  him,  or  of  the  fact  that 
the  property  was  incumbered.  His  absolute  refusal  to  perform  is 
a  waiver  of  the  right  to  require  performance  on  the  part  of  the 
vendor.3 

The  vendor  will  be  restrained  from  bringing  an  action  at  law  to 
recover  damages  for  breach  of  the  contract,  if  his  bill  for  specific 
performance  has  been  dismissed  for  want  of  title,  unless  dismissed 
without  prejudice  to  his  remedy  at  law.4 

'Daniels  v.  Newton,  114  Mass.  530;  19  Am.  Rep.  384,  disapproving  Frost 
v.  Knight,  L.  R.  7  Excli.  Ill,  and  Hochster  v.  De  la  Tour,  2  E.  &  B.  678. 

2  Language  of  WELLS,  J.,  in  Daniels  v.  Newton,  supra. 

"Carpenter  v.  Holcomb,  105  Mass.  280;  Wells  v.  Day,  124  Mass.  38.  In 
this  case  the  purchaser  of  three  separate  and  distinct  lots  of  land  refused 
absolutely  to  complete  the  contract  on  grounds  which  applied  only  to  the  first 
two  lots.  The  vendor  resold  the  third  lot  at  a  considerable  loss  and  brought 
an  action  against  the  purchaser  for  breach  of  the  contract,  and  it  was  held 
that  defects  in  a  deed  which  had  been  tendered  to  him,  and  the  existence  of 
a  mortgage  en  the  third  lot  constituted  no  defense  to  the  action. 

4 1  Sugd.  Vend.  (8th  Am.  ed.)  356;  McNamara  v.  Arthur,  2  Bn'  i  Bent.  349. 


CHAPTER  III. 

IMPLIED  AND  EXPRESS  AGREEMENTS  AS  TO  THE  TITLE, 

IMPLIED  AGREEMENTS. 

General  Rule.     §  5. 
EXPRESS  AGREEMENTS. 
General  Principles.     §  6. 
Terms  and  Conditions  of  Sale.     §  7. 
Parol  Evidence.     Auctioneer's  Declarations.     §  8. 
English  Rules  as  to  Conditions.     §  9. 
Agreement  to  make  "  Good  and  Sufficient  Deed."    §  10. 
Agreement  to  convey  by  Quit  claim.    §11. 
Agreement  to  sell  "  Right,  Title  and  Interest."    §  12. 
Agreement  to  sell  subject  to  Liens.     §  13. 

§  5.  IMPLIED  AGREEMENTS  —  General  Rule.  The  purchaser  M 
entitled  to  require  from  the  vendor,  in  the  absence  of  any  provision 
in  the  contract,  a  good  marketable  title,  free  from  all  defects  or 
incumbrances.  The  right  to  a  good  title  does  not  grow  out  of  the 
contract  between  the  parties,  but  is  given  by  law  and  is  implied  in 
every  contract  of  sale.'  And  the  rule  is  general  that  a  contract  for 

1  Dart  Vend.  &  Purch.  (4th  ed.)  104;  1  Sugd.  Vend.  (8th  Am.  ed.)  24  (16),  456 
(298),  510  (337);  Rawle  Cov.  for  Title  (5th  ed.),  §  32;  Hall  v.  Betty,  4  M.  &  G. 
410;  Geoghegan  v.  Connolly,  8  Ir.  Ch.  598;  Souter  v.  Drake,  5  B.  &  Ad.  992; 
Purvis  v.  Rayer,  9  Pri.  488;  Doe  v.  Stanion,  1  M.  &  W.  701;  Hughes  v.  Parker, 
8  M.  &  W.  244;  Sharland  v.  Leifchild,  10  Ad.  &  El.  529;  Flinn  v.  Barber,  64  Ala. 
193;  Easton  v.  Montgomery,  90  Cal.  314;  27  Pac.  Rep.  280;  Krause  v.  Krause, 
58  111.  App.  559;  Shreck  v.  Pierce,  3  Clarke  (Iowa),  350;  Puterbaugh  Y. 
Puterbaugh,  (Ind.)  34  N.  E.  Rep.  611;  Durham  v.  Hadley,  (Kans.)  27  Pac. 
Eep.  105;  Swan  v.  Drury,  22  Pick.  (Mass.)  485;  Dwight  v.  Cutler,  3  Mich. 
566;  34  Am.  Dec.  105;  Murphin  v.  Scoville,  41  Minn.  262;  Drake  Y.  Barton, 
18  Minn.  414  (462)  :  Donlon  v.  Evans,  40  Minn.  501;  42  N.  W.  Rep.  472;  New 
Barbadoes  Toll  Bridge  Co.  v.  Vreeland,  3  Green  Ch.  (N.  J.)  157;  Newark 
Sav.  Inst.  v.  Jones,  37  N.  J.  Eq.  449 ;  Burwell  v.  Jackson,  9  'N.  Y.  535,  543,  a 
much  cited  case;  Pomeroy  v.  Drury,  14  Barb.  (N.  Y.)  418;  Innesa  v.  Willis, 

48  N.  Y.  Super.  Ct.  192:  In  re  Hunter,  1  Edw.  (N.  Y.)   1;  Wheeler  v.  Tracy, 

49  N.  Y.  Super.  Ct.  208;   Tharin  v.  Frickling,  2  Rich.    (S.   C.)    361;   Breit- 
haupt  v.  Thurmond.  3  Rich.  (S.  C.)  216;  Green  v.  Chandler,  25  Tex.  157;  Nel- 
v.  Matthews,  2  H.  &  M.   (Va.)    164;  3  Am.  Dec.  620;  Moulton  v.  Chaffee,  22 
Fed.  Rep.  26.     The  vendor  in  an  executory  contract  for  the  sale  of  lands,  in 
the  absence  of  express  statements  to  the  contrary,  represents  and  warrants 
that  he  ie  the  owner  of  the  property  which  he  assumes  to  sell,  and  that  he 
has  a  good  title  thereto.     Innes  v.  Willis,  16  Jones  &  S.    (N.  Y.)    188.     In 
Owings  v.  Thompson,  3  Scam.   (111.)   502,  the  broad  rule  is  laid  down  that,  in 
the  absence  of  any  express  contract  as  to  what  kind  of  title  a  purchaser  in 


IMPLIED  AND  EXPRESS  AGREEMENTS  AS  TO  THE  TITLE.    21 

the  sale  of  lands  which  is  silent  as  to  the  title  or  interest  to  l>e  con- 
veyed, implies  an  agreement  to  convey  not  only  an  unincumbered 
and  indefeasible  estate,  but  such  an  estate  in  fee  simple,  that  is,  the 
largest  estate  that  can  be  had  in  the  premises,1  though  of  course  it 
may  be  shown  that  a  less  interest  was  sold.2 

An  agreement  to  sell  land  which  contains  no  restrictive  expres- 
sions is  an  ^agreement  to  sell  the  whole  of  the  vendor's  estate  or 
interest  therein.3  It  will  be  presumed  that  the  estate  sold  was  to  be 
accompanied  by  all  of  its  legal  incidents,4  such  as  a  right  of  way,5 
and  that  which  springs  from  the  rule  eujus  est  solum  fjusest  usque 
ad  coslum,6  or  the  right  to  the  undisturbed  enjoyment  of  the  space 
above  or  the  ground  below  the  surface  of  the  area  of  the  estate. 
But  the  implication  that  the  purchaser  was  to  receive  a  title  free  from 
incumbrance  may  be  rebutted  by  showing  that  he  had  notice  of 
the  existence  of  the  incumbrance.7 

If  the  vendor  agree  to  convey  by  quit  claim  deed  he  merely  con- 
tracts to  sell  such  interest  as  he  then  has,  and  cannot  be  required  to 
convey  an  interest  subsequently  acquired.8 


any  case  is  to  receive,  he  must  take  the  title  at  his  own  risk;  in  other 
words,  that  there  is  no  implied  contract  that  the  title  shall  he  indefeasible. 
Aud  such,  the  court  adds,  is  the  rule  in  England  and  in  most  of  the  Ameri- 
can States.  It  is  submitted  with  deference  that  such  is  not  the  rule  either  in 
England  or  in  America  (see  authorities,  ante,  this  note),  except  in  the  case 
of  judicial  and  ministerial  sales,  and  that  the  rule  announced  in  this  case 
in  which  the  purchase  was  made  at  a  judicial  sale,  should  have  l>een  limited 
to  sales  of  that  kind,  as  indicated  in  the  qualified  concurrence  by  TREAT,  J., 
in  the  opinion  of  the  court.  See  post,  "  Caveat  Emptor,"  ch.  5. 

I  Cases  cited  in  last  note.     Hughes  v.  Parker,  8  M.  &  W.  244;  Cattell  r.  Cor- 
rall,  4  Yo.  &  C.  228. 

*  Cowley  v.  Watts,  17  Jur.  172;  Cox  v.  Middleton,  2  Dru.  217. 

I 1  Sudg.  Vend.  (8th  Am.  ed.)  24  (16);  Bower  v.  Cooper,  2  Ha.  408. 
4  Skull  v.  Clenister,  16  C.  B.  (N.  S.)  81;  33  L.  J.  C.  P.  185. 

kLangford  v.  Selraes,  3  K.  &  Jo.  220;  Denne  v.  Light,  3  Jur.  (N.  8.)  627;  Stan- 
ton  v.  Tattersall,  1  Sm.  &  G.  529,  where  the  purchaser  was  relieved  for  want  of 
proper  access  to  a  house. 

•  Lewis  v.  Braithwaite,  2  B.  &  Ad.  437;  Keyse  v.  Powell,  2  El.   &  Bl.  132; 
Sparrow  v.  Oxford  R.  Co.,  2  DeG.,  M.  &  G.  108;  Pope  v.  Garland,  4  Y.  &C.  403; 
Whittington  v.  Corder,  16  Jur.  1034,  where  there  was  a  failure  of  title  to  an 
underground  cellar. 

7  Newark  Sav.  Inst.  v.  Jones,  37  N.  J.  Eq.  449. 
•Woodcock  v.  Bennet,  1  Cow.  (N.  Y.)  711;  13  Am.  Dec.  568. 


Zli  MARKETABLE    TITLE    TO'    REAL    ESTATE. 

The  sale  of  a  lease  implies  a  contract  on  the  part  of  the  seller 
that  he  will  show  a  good  title  in  the  landlord.1  A  contract,  how- 
ever, to  sell  an  agreement  for  a  lease,  does  not  imply  a  title  in  the 
lessor  to  make  the  lease,  and  an  action  on  the  contract  by  the  seller 
cannot  be  defended  on  the  ground  that  the  lessor  had  no  title.2 
Nor  in  an  assignment  of  an  executory  contract  for  the  sale  of  lands, 
is  there  any  implication  of  good  title  in  the  original  vendor.8  Nor 
is  there  any  such  implied  warranty  in  the  assignment  of  a  land-office 
certificate.4 

Inasmuch  as  a  contract  to  convey  a  clear  title  is  implied  in  the 
sale  of  lands,  an  agent  of  the  vendor  does  not  exceed  his  authority 
by  inserting  such  a  provision  in  a  written  contract  of  sale.5  If  it 
appear  that  the  premises  were  sold  at  a  fair  price,  the  presumption 
would  be  that  the  contract  entitled  the  purchaser  to  an  indefeasible 
title.  If,  on  the  other  hand,  the  price  was  merely  nominal,  the  rea- 
sonable presumption  would  be  that  the  purchaser  could  require 
from  the  vendor  no  more  than  a  quit  claim,  or  release  of  his  rights, 
and  that  he  had  agreed  to  take  the  title  such  as  it  might  be. 
The  legal  implication  of  an  agreement  on  the  part  of  the  vendor 
that  the  title  he  is  to  convey  shall  be  clear,  unincumbered  and  inde- 
feasible, is  to  be  limited  strictly  to  cases  in  which  the  vendor  sells 
in  his  own  right.  Where  the  sale  is  made  in  a  ministerial,  repre- 
sentative or  official  capacity  the  conclusive  presumption  of  law  is 
that  the  vendor  sells  merely  such  interest  as  may  happen  to  be 
vested  in  him,  be  the  same  defeasible  or  indefeasible.  The  maxim 
caveat  emptor  applies,  and  the  purchaser  can  neither  rescind  the 
contract  nor  maintain  an  action  for  damages  if  the  title  turns  out 
to  be  defective.  This  class  of  cases  is  considered  at  some  length 
hereafter.6  If  the  vendor  fails  or  is  unable  to  convey  at  the  time 
fixed  for  the  completion  of  the  contract  such  a  title  as  the  pur- 

»1  Sugd.  Vend.  368;  Tweed  v.  Mills,  L.  R.,  1  C.  P.  39;  Purvis  v.  Rayer,  9 
Pri.  488;  Gaston  v.  Frankum,  2  De  G.  &  Sm.  561;  Clive  v.  Beaumont,  1  De  G. 
&  Sm.  397;  Hall  v.  Betty,  4  Mann.  &  G.  410;  Souter  v.  Drake,  5  B.  &  Ad.  992; 
Drake  v.  Shiels,  7  N.  Y.  Supp.  209;  Burwell  v.  Jackson,  9  N.  Y.  539. 

1  Kintrea  v.  Preston,  1  H.  &  N.  357. 

1  Thomas  v.  Bartow,  48  N.  Y.  193. 

4  Johnston  v.  Houghton,  19  Ind.  309. 

'Keirn  v.  Lindley,  (N.  J.  Eq.)  30  Atl.  Rep.  1083. 

•  Post,  ch.  5,  "  Caveat  Emptor." 


IMPLIED  AND  EXPRESS   AGREEMENTS   AS  TO  THE  TITLE.         23 

chaser  may  demand,  there  is  a  breach  of  the  contract  of  sale,  and 
the  latter  may,  if  time  was  of  the  essence  of  the  contract,  have  his 
action  for  damages,  unless  the  title  is  merely  doubtful  and  not  abso- 
lutely bad.  In  that  case,  as  we  have  seen,  he  may  rescind  the 
•contract  and  recover  back  his  deposit,  but  is  not  entitled  to 
damages.1 

§  6.  EXPRESS  AGREEMENTS.  General  Principles.  Upon  the 
sale  of  real  property  it  is  customary  for  the  parties  to  enter 
into  a  written  contract  containing  their  names,  a  description  of  the 
property,  the  quantity  of  the  estate  sold,  such  as  a  fee  simple  or 
life  estate,  and  the  terms  or  conditions  of  the  sale,  and  fixing  a  time 
when  the  contract  shall  be  fully  executed  by  payment  of  the  pur- 
chase money  and  a  conveyance  to  the  purchaser.2  The  contract 
also  usually  specifies  the  kind  of  title  the  purchaser  is  to  receive, 
and  sometimes  it  is  in  the  form  of  a  sealed  obligation  under  pen- 
alty on  the  part  of  the  vendor  to  convey  a  good  title,  in  which  case 
the  instrument  is  known  as  a  "  title  bond."  8 

The  contract  usually  also  provides,  especially  when  the  sale  is 
made  at  public  auction,  that  the  purchaser  shall  have  a  specified 
time  within  which  to  examine  the  title,  and  that  if  the  title  should 
prove  bad  or  unsatisfactory,  the  earnest  money  shall  be  refunded.4 

If  the  purchaser  contract  for  a  title  deducible  of  record,  he  can- 
1 ' 

'Ante,  §   2. 

lWarvelle  Vend.   ch.   III. 

3Vardamanv.  Lawson,  17  Tex.  16.  The  court  said  in  this  case  that  a  bond 
for  title  is  an  instrument  which  evidences  a  contract  for  the  sale  of  land,  and  is 
substantially  an  agreement  by  the  vendor  to  make  to  the  vendee  a  title  to  the 
land  described.  It  seems  scarcely  necessary  to  say  that  many  of  the  decisions 
used  in  the  following  pages  as  illustrations  of  the  rules  of  law  governing  express 
contracts  with  respect  to  the  title  were  not  rendered  in  actions  by  the  purchaser 
for  breach  of  the  contract  of  sale.  The  principles  are  the  same  whether  the 
action  be  by  or  against  the  purchaser  in  affirmance  or  rescission  of  the  contract. 
In  each  of  these  cases  the  rights  of  the  purchaser  are,  of  course,  governed  by 
the  express  terms  of  the  contract,  and  no  inconvenience,  it  is  apprehended,  can 
result  from  considering  the  cases  founded  on  express  contracts  under  the  head  of 
affirmance  of  the  contract  and  action  for  breach,  without  regard  to  the  nature  of 
the  proceedings  in  which  the  decisions  were  made. 

4 1  Warvelle  Vend.  327.  In  Smith  v.  Schiele,  93  Cal.  150,  the  question  was 
raised  whether  an  agent  was  competent  to  make  the  agreement,  "title  to  prove 
good  or  no  sale,"  but  was  not  decided. 


24  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

not  be  compelled  to  accept  a  title  resting  altogether  upon  matters 
in  pats?  such,  for  example,  as  a  title  by  adverse  possession.8  A 
stipulation  in  a  contract  of  sale  that  the  vendor  shall  furnish  an 
abstract  showing  title  to  the  property  has  been  said  to  be  equivalent 
to  an  agreement  that  the  purchaser  shall  receive  a  good  title  of 
record.8  It  has  been  held  that  an  agreement  to  furnish  a  satisfac- 

1  Page  v.  Greeley,  75  m.  400;  Noyes  v.  Johnson,  139  Mass.  436. 

•Post,  §292. 

•  2  Warvelle  Vend.  764.  See  upon  this  point  2  Sugd.  Vend.  (8th  Am.  ed.)  27 
(427).  In  Smith  v.  Taylor,  82  Cal.  533,  the  contract  contained  the  following  pro- 
vision: "The  title  to  said  above  lands  to  prove  good  or  no  sale,  five  days  being- 
allowed  to  examine  abstract  or  certificate,  and  pass  upon  title  after  abstract  or 
certificate  is  delivered."  The  court,  after  observing  that  this  was  not  simply  a 
contract  to  make  good  title,  continued:  "  The  only  fair  interpretation  of  this  con- 
tract is  that  be  (the  vendor)  was  to  furnish  an  abstract  of  title  —  a  paper  pre- 
pared by  a  skilled  seacher  of  records,  which  should  show  an  abstract  of  what- 
ever appeared  on  the  public  records  of  the  county  affecting  the  title  —  and  that 
the  abstract  must  show  good  title,  or  there  was  no  sale  *  *  *.  Under  that 
contract  the  plaintiff  (purchaser)  was  not  bound  to  make  any  investigation  out- 
side the  abstract,  or  to  take  the  chanees  of  any  litigation  which  the  abstract 
showed  to  be  either  pending  or  probable."  In  Boas  v.  Parrington,  85  Cal.  535, 
the  provision  of  the  contract  was:  "Title  to  be  good  or  the  money  to  be 
refunded,  party  of  the  first  part  (vendor)  to  furnish  an  abstract  of  title  to  said 
land."  The  abstract  furnished  did  not  show  a  good  title,  and  in  an  action  by  the 
purchaser  to  recover  his  deposit,  judgment  was  rendered  in  his  favor  though  the 
court  below  found  that  as  a  matter  of  fact  the  vendor  had  a  good  title.  This 
judgment  was  affirmed  on  appeal,  the  court  saying:  "The  appellant  contends 
that  the  contract  did  not  require  him  to  furnish  an  abstract  showing  a  good  title, 
or  at  most  that  he  was  not  bound  to  furnish  it  at  the  time  the  defective  one  was 
furnished,  or  at  any  time  before  the  time  for  the  final  payment  of  the  purchase 
money,  and  that  as  it  appeared  at  the  trial  that  he  had  a  good  title  to  the  prop- 
erty he  was  entitled  to  judgment.  We  cannot  so  construe  the  contract  *  *  * 
certainly  when  the  abstract  was  furnished,  the  purchaser  had  the  right  to  act 
upon  it,  and  as  it  failed  to  show  a  good  title  in  the  vendor,  the  vendee  was  not 
bound  to  lay  out  of  the  use  of  his  money,  and  pay  the  whole  balance  of  the  pur- 
chase money  before  he  could  recover  back  any  part  of  what  he  had  paid.  If  the 
vendor  had  a  good  title,  as  the  court  below  found  he  had,  he  should  have  fur- 
nished an  abstract  showing  it,  and  upon  it  being  called  to  his  attention,  either  by 
the  demand  for  a  rescission  or  otherwise,  that  it  was  defective,  he  should  have  at 
once  caused  a  perfect  abstract  to  be  furnished.  He  did  neither,  and  in  his  answer 
stands  by  the  abstract  furnished  by  him,  and  asserts  that  it  was  a  good  one.  If 
the  abstract  was  a  good  one  it  shows  that  his  title  was  bad.  It  is  too  late  now 
for  him  to  assert  that  he  was  not  bound  to  furnish  an  abstract  at  all,  or 
that  he  was  not  bound  to  furnish  it  at  the  time  he  did."  As  to  when  the 
purchaser  may  be  compelled  to  accept  a  title  resting  upon  adverse  posses- 
sion. See  post  §  292. 


IMPLIED  AND  EXPBESS  AGREEMENTS  AS  TO  THE  TITLE.         25 

tory  abstract  of  title  referred  only  to  the  fullness  or  completeness  of 
the  abstract,  and  not  to  the  quality  of  the  vendor's  title.1 

If  the  vendor  agrees  to  furnish  an  abstract  showing  a  clear  title, 
and  the  abstract  furnished  shows  a  defective  title,  the  vendor  can- 
not avoid  a  rescission  on  the  part  of  the  purchaser,  with  proof  that 
adverse  claims  appearing  from  the  abstract  are  in  fact  groundless. 
In  such  a  case  it  has  been  held  that  the  purchaser  may  rescind,  not- 
withstanding the  sufficiency  of  the  title.2  It  has  been  held,  how- 
ever, that  if  a  contract  provide  for  an  abstract  showing  title,  and 
the  abstract  furnished  did  not  show  title,  it  might  be  supplemented 
by  written  evidences  of  title.8 

§  7.  Terms  and  conditions  of  sale.  In  the  American  practice 
there  seems  to  be  nothing  so  elaborate  as  the  English  "  particulars 
and  conditions  of  sale,"  or  "  common  conditions,"  as  they  are  some- 
times called.4  Auction  sales  of  real  estate  are,  with  us,  usually  pre- 
ceded by  a  newspaper  advertisement  or  "  hand  bill "  containing  a 
description  of  the  property  and  the  terms  and  conditions  of  the 
sale,5  and  these  are  frequently  supplemented,  so  far  as  the  title  is 
concerned,  by  the  verbal  declarations  of  the  auctioneer  at  the  time 
of  the  sale.' 

§  8.  Parol  evidence  —  Auctioneer's  declarations.  Whenever 
specific  performance  of  a  contract  of  sale  is  sought  in  equity,  parol 
evidence  of  declarations  by  the  auctioneer  before  the  sale,  adding  to 
or  altering  the  terms  of  the  sale,  is  admissible  on  behalf  of  the 
defendant,  whether  vendor  or  purchaser.7  In  this  particular  the 
law  is  the  same  in  America  as  in  England.8 

1  Fitch  v.  Willard.  73  111.  92.  In  England  it  is  said  that  an  agreement  to  fur- 
nish a  "  perfect  abstract "  means  a  complete  abstract,  that  is,  the  best  that  the 
vendor  can  furnish  through  the  title  itself  be  defective.  Dart.  Vend.  (5th  ed.)  136, 
citing  Hobson  v.  Bell,  2  Beav.  17;  Morley  v.  Cook,  2  Ha.  111. 

*  Smith  v.  Taylor,  82  Cal.  538;   see  extracts  from  this  case,  supra;  Taylor  v. 
Williams,  (Colo.)  81  Pac.  Rep.  505. 

» Welch  v.  Button,  79  HI.  465. 

4  Post,  this  chapter. 

1  See  King  v.  Knapp,  59  N.  Y.  462. 

•  Averett  v.  Lipscombe,    76  Va.  404,  affords  an  illustration  of  this  common 
practice. 

1  Averett  v.  Lipscombe,  76  Va.  404. 
» Post,  §  9. 


26  MAKKETABLE    TITLE    TO    KEAL   ESTATE. 

§  9.  English  rules  respecting  contracts  as  to  the  title. 
Much  of  the  learning  that  is  found  in  the  English  treatises  on  the 
law  of  vendor  and  purchaser  will  be  found  inapplicable  in  America, 
owing  to  the  diversity  between  the  rules  and  practice  of  convey- 
ancing in  the  two  countries.  At  the  same  time  much  that  is  to  be 
found  there  would  seem  to  be  applicable  here,  especially  the  gen- 
eral rules  restricting  or  enlarging  the  liabilities  and  rights  of  the 
parties  with  respect  to  the  title  to  be  conveyed  or  acquired  under 
the  express  terms  of  the  contract  of  sale.1 

1  In  England  a  highly  artificial  system  of  conveyancing  prevails,  a  fact  due  to 
the  intricacies  of  landed  settlements,  and  to  the  obscurity  in  which,  from  the 
want  of  a  general  registration  law,  title  to  real  estate  is  there  involved.  A  glance 
at  the  pages  of  Dart  or  Sugden,  the  principal  English  treatises  on  the  law  of 
vendor  and  purchaser,  will  suffice  to  show  the  wide  difference  which  exists 
between  the  English  and  American  practice  in  respect  to  the  formalities  and 
preliminaries  attending  the  execution  of  a  contract  for  the  sale  of  lands.  In 
America,  where  land  in  some  sections  changes  owners  with  almost  the  rapidity 
of  personal  property,  the  contract,  particularly  in  rural  districts,  is  usually 
drawn  by  the  parties  themselves,  and  consequently  often  abounds  with  loose  and 
ambiguous  expressions,  or  contains  technical  terms  to  which  the  law  gives  a  force 
and  effect  different  perhaps  from  that  which  was  intended  by  the  parties.  Even 
in  the  large  cities  the  terms  and  conditions  upon  which  real  property  is  sold  are 
usually  brief  and  simple.  In  England,  however,  transfers  of  landed  property, 
especially  of  the  fee  simple,  are  comparatively  rare  occurrences,  and,  it  would 
seem,  are  seldom  or  never  undertaken  without  the  advice  and  assistance  of  a 
skilled  conveyancer.  The  "  particulars  and  conditions  of  the  sale,"  as  they  are 
called,  are  carefully  prepared  and  circulated  before  the  sale,  and  incorporated  in 
the  contract  when  the  sale  is  made;  and  as  a  general  rule  they  set  forth  explicitly 
the  character  of  title  which  the  vendor  will  undertake  to.  convey.  The  same 
degree  of  care  and  precaution  is  exercised  in  the  case  of  private  sales.  If  the 
vendor  intends  to  sell  only  such  interest  as  he  has,  be  what  it  may,  the  technical 
expression  employed  is,  "  that  he  shall  not  be  required  to  produce  a  title,"  appar- 
ently a  figure  of  speech,  meaning  that  the  vendor  shall  not  be  required  to  fur- 
nish an  abstract,  or  to  produce  deeds,  affidavits,  pedigrees  or  other  documents 
showing  a  marketable  title  in  himself.  In  the  absence  of  a  general  registry  of 
deeds  and  incumbrances,  the  purchaser  can  have,  of  course,  no  opportunity  to 
judge  of  the  sufficiency  of  the  vendor's  title,  unless  the  instruments  by  which  it 
is  evidenced  are  produced,  and  to  take  a  title  without  the  exhibition  of  such  evi- 
dences necessarily  means  to  take  just  such  title  as  the  vendor  has.  Perhaps  the 
most  important  point  to  be  considered  in  determining  the  application  of  English 
decisions,  in  American  cases,  affecting  the  rights  of  the  parties  with  respect  to 
the  title,  as  dependent  on  the  express  terms  of  their  contract,  is  the  fact  that  in 
England  the  purchaser  can  only  require  covenants  against  defects  of  title  arising 
from  the  acts  of  the  vendor  himself,  while  in  America,  except  in  a  few  of  the 


IMPLIED  AND  EXPRESS  AGREEMENTS  AS  TO  THE  TITLE.    27 

"  Particulars  "  or  "  conditions  "  of  the  intended  sale  are  prepared 
by  the  vendor's  counsel  and  circulated  in  the  auction  room  before 
the  sale  as  well  as  announced  by  the  auctioneer  at  the  time  of  sale.1 
These,  it  is  presumed,  while  much  more  elaborate,  correspond  to 
some  extent  with  the  "  hand  bill "  or  "  advertisement  "  commonly 
employed  in  America,  containing  a  description  of  the  property  and 
terms  of  the  sale,  and  any  other  matter  to  which  the  attention  of 
prospective  buyers  is  to  be  called.  If  the  sale  is  by  private  con- 
tract, the  same  rules  apply  as  in  the  case  of  ordinary  conditions  of 
sale  by  auction.2  The  particulars  usually  give  a  description  of 

States,  the  rule  is  that  the  purchaser  may  demand  a  conveyance  with  gen- 
eral covenants,  that  is,  against  the  acts  of  all  persons  whomsoever,  no  matter 
how  far  back  in  the  chain  of  title.  As  the  intention  of  the  parties  must  govern 
in  the  construction  of  the  contract,  and  as  that  intention  must  be  largely  affected 
by  the  extent  of  the  rights  which  they  acquire  or  lose  by  the  terms  of  the 
contract,  it  is  obvious  that  the  difference  is  one  of  vital  importance,  and  should 
constantly  be  borne  in  mind.  Of  course  the  purchaser  may  in  America,  as  in 
England,  agree  to  take  the  title  of  the  vendor  such  as  it  is,  good  or  bad,  and 
language  sufficiently  evidencing  such  an  agreement  in  England  may  have  the 
same  effect  in  America.  But  it  by  no  means  follows  that  language  which  in 
England  would  require  the  purchaser  to  take  such  title  as  the  vendor  had,  would 
in  all  cases  \c  America  be  followed  by  the  same  consequences,  and  deprive  the 
purchaser  of  his  right  to  maintain  or  defend  an  action  for  breach  of  contract,  on 
the  ground  of  inability  of  the  vendor  to  convey  a  marketable  title,  or  to  require 
covenants  adequate  for  his  protection.  For  these  reasons  it  has  been  deemed 
best  to  separate  in  the  following  pages  the  English  rules  respecting  contracts  in 
relation  to  the  title  from  the  American  doctrine,  except  in  those  cases  where  the 
rules  in  question  have  been  approved  or  adopted  by  the  American  courts. 

1  "The  conditions  of  the  sale  should  be  printed  and  circulated  some  time  pre- 
viously to  the  sale  or  at  any  rate  in  the  auction  room,  so  as  to  give  each  person  an 
opportunity  of  ascertaining  the  terms  on  which  the  property  is  sold.  The  sys- 
tem which  is  adopted  by  some  of  the  provincial  law  societies  of  having  printed 
common  form  conditions,  which  are  used  on  every  sale,  and  to  which  are  prefixed 
the  special  conditions  under  which  the  particular  property  is  sold,  has  much  to 
recommend  it;  the  effect  of  the  common  form  conditions  is  well  understood,  and 
the  attention  of  the  purchaser  and  his  solicitor  is  at  once  directed  to  the  special 
restrictive  conditions.  The  practice,  which  still  prevails  in  some  parts  of  the 
country,  of  having  written  conditions  which  are  merely  produced  and  read  over, 
but  not  circulated  in  the  auction  room,  cannot  be  too  strongly  reprobated;  and, 
if  the  purchaser  is  thereby  misled  or  not  fully  informed  on  a  material  point,  may 
result  in  the  rescission  of  the  contract."  Dart  V.  &  P.  (5th  ed.)  124,  citing  Tor- 
ranee  v.  Bolton,  L.  R.,  14  Eq.  124;  8  Ch.  App.  118. 

1  Rhodes  v.  Ibbetson,  4  De  G..  M.  &  G.  787;  Bulkley  v.  Hope,  1  Jur.  (N.  8.) 
864. 


28  MARKETABLE    TITLE    TO-   SEAL   ESTATE. 

the  property  and  the  nature  and  extent  of  the  vendor's  interest. 
The  conditions  state  the  terms  on  which  the  property  is  sold, 
including  the  undertakings  of  the  vendor  with  respect  to  the  title.1 
When  the  sale  is  made  the  auctioneer  usually  indorses  the  agree- 
ment on  a  copy  of  the  particulars  and  conditions,  thereby  embody- 
ing them  in  the  contract  of  sale.2 

Every  condition  intended  to  relieve  the  vendor  from  his  prima 
facie*  liability  to  deduce  a  marketable  title  and  verify  the  abstract 
by  proper  evidence  at  his  own  expense  must  be  expressed  in  plain 
and  unambiguous  language.4  The  purchaser,  however,  will  be  bound 
by  a  clear  stipulation  as  to  the  title ; 5  for  example,  an  agreement 
by  assignees  in  bankruptcy  to  sell  the  estate  of  the  bankrupt  "  under 
such  title  as  he  recently  held  the  same,  an  abstract  of  which  may  be 
seen ; " 6  or  that  the  purchaser  should  only  have  the  receipt  and 
conveyance  of  an  equitable  mortgagee  and  his  assignees  ; 7  an  agree- 
ment by  the  vendors  that  they  should  convey  only  "  such  title  as 
they  had  received  from  A.; " 8  that  the  purchaser  should  accept  the 
vendor's  title  "  without  dispute ;  " 9  that  he  should  accept  "  such 

'Dart  V.  &  P.  (5th  ed.)  114.  In  Torrance  v.  Bolton,  L.  R.,  14  Eq.  130,  it 
appeared  that  the  particulars  erroneously  described  the  quantity  of  the  vendor's 
estate,  but  that  the  conditions  contained  a  correct  description.  It  also  appeared 
that  the  conditions  were  read  by  the  auctioneer  at  the  sale,  but  it  did  not  appear 
that  they  had  been  distributed  among  the  bystanders.  The  purchaser  was 
allowed  to  rescind. 

•Dart  V.  &P.  (5th  ed.)  114.  Where  the  auctioneer  read  from  an  altered  copy 
the  particulars  and  conditions,  but  inadvertently  signed  an  agreement  on  an  unal- 
tered copy,  it  was  held  that  the  purchaser  was  bound,  though  it  did  not  appear  that 
he  had  heard  the  auctioneer  read  the  altered  copy.  Manser  v.  Buck,  6  Ha.  443. 

»Sugd.  17;  Dart.  V.  &  P.  (5th  ed.)  109;  Rawle  Cov.  §  32;  Souter  v.  Drake,  5 
B.  &  A.  992;  Doe  v.  Stanion,  1  M.  &  W.  695;  Hall  v.  Betty,  4  Mann.  &  G.  410; 
Worthington  v.  Warrington,  5  C.  B.  636. 

4Drysdale  v.  Mace,  2  Sm.  &  Giff.  225;  Symons  v.  James,  1  Y.  &  C.  (C.  C.)  490; 
Osborne  v.  Harvey,  7  Jur.  229;  Clark  v.  Faux,  3  Russ.  320;  Morris  v.  Keareley, 
2  Y.  &  C.  139;  Waddell  v.  Wolfe,  L.  R.,  9  Q.  B.  515;  Blake  v.  Phinn,  3  C.  B. 
976;  Madely  v.  Booth,  9  De  G.  &  8.  718;  Webb  v.  Kirby,  7  De  G.,  M.  &  G.  376; 
Edwards  v.  Wickwar,  L.  R.,  1  Eq.  68;  Jackson  v.  Whitehead,  28  Beav.  154. 

8  Seaton  v.  Mapp,  2  Coll.  556;  Forster  v.  Hoggart,  15  Q.  B.  155;  Worthington 
v.  Warrington,  5  C.  B.  636;  Lethbridge  v.  Kirkman,  2  Jur.  (N.  8.)  372. 

•Freme  v.  Wright,  4  Madd.  364. 

1  Groom  v.  Booth,  1  Dre.  548. 

8  Wilmot  v.  Wilkinson,  6  B.  &  C.  506;  Ashworth  v.  Mounsey,  9  Exch.  176. 

•Duke  v.  Barnett,  2  Coll.  337;  Molloy  v.  Sterne,  1  Dru.  &  Wai.  585. 


IMPLIED  AND  EXPKESS  AGREEMENTS  AS  TO  THE  TITLE.    29 

title  as  the  vendor  has."  l  So  where  the  agreement  provided  that 
the  title  should  "  not  be  inquired  into."  *  So,  also,  where  the  defect 
of  title  was  clearly  stated  in  the  conditions  of  sale.1 

It  seems,  however,  to  be  by  no  means  clear  that  in  England  a  con- 
dition of  sale  that  the  vendor  should  not  be  required  to  produce  a  title, 
will  prevent  the  purchaser  from  showing  aliunde  that  the  title  is  bad. 
There  have  been,  apparently,  conflicting  decisions  upon  the  point.4 

But  while  the  purchaser  will  be  bound  by  a  clear  stipulation  in 
the  conditions  of  sale  respecting  the  title,  the  vendor  will  be  strictly 
held  to  any  representations  he  lias  made  regarding  the  title.5  And 

1  Keyse  v.  Heydon,  20  L.  T.  244;  Tweed  v.  Mills,  L.  R.,  1  C.  P.  39. 
*  Hume  v.  Bentley,  5  De  G.  &  8.  520.   Compare  Darlington  v.  Hamilton,  Kay, 
550,  and  Waddell  v.  Wolfe,  L.  R.,  9  Q.  B.  515. 

3  Nichols  v.  Corbett,  3  De  G.,  J.  &  S.  18. 

4  In  Spratt  v.  Jeffery,  5  Mann.  &  Ry.  188;  10  B.  &  C.  249,  the  agreement  wai 
in  the  following  words:  "And  the  said  (purchaser)  doth  hereby  agree  to  accept  a 
proper  assignment  of  the  said  two  leases  and  premises,  as  above  described,  wth- 
out  requiring  the  lessor's  title."    BAYI.EY,  J.,  for  the  court,  said  that  "the  fair  and 
reasonable  construction  of  those  words  is  the  purchaser  shall  not  be  at  liberty  to 
raise  any  objection  to  the  lessor's  title."    In  Shepherd  v.  Keatley,  1  Crompt.,  M. 
&  R.  117,  the  agreement  was  "that  the  vendors  should  deliver  an  abstract  of  the 
lease,  and  of  the  subsequent  title  under  which  the  leasehold  lots  are  held,  but 
should  not  be  obliged  to  produce  the  lessor's  title."    In  this  case  the  language  italicised 
was  held  distinguishable  from  that  in  Spratt  v.  Jeffery,  supra,  and  that  it  did  not 
preclude  the  purchaser  from  taking  any  objections  to  the  title  which  he  might 
discover.     These  cases  are  apparently  in  conflict,  but  have  been  held  reconcilable 
in  Duke  v.  Barnett,  2  Coll.  337.     Sugden  says  that  Spratt  v.  Jeffery  would  prob- 
ably not  now  be  followed.     Sugd.  Vend.  (8th  Am.  ed.)  26.     See,  also,  Fry  8p. 
Perf.  (3d  Am.  ed.)  614,  where  that  case  is  said  to  have  been  overruled.     In  Hume  v. 
Pocock,  L.  R. ,  lEq.428,  Sir  JOHN  STUART,  V.  C.,  said:  "  There  is  no  doubt  that  in 
contracts  for  the  sale  and  purchase  of  property  the  terms  of  the  contract  must  be 
clear,  in  order  that  the  court  may  see  how  far  the  subject-matter  of  the  purchase 
can  be  given  by  the  party  who  contracts  to  sell  to  him  whb  contracts  to  buy.     But 
the  owner  of  a  disputed  title  may  make  a  valid  contract  for  the  sale  of  that  title, 
such  as  it  may  be.     No  doubt,  with  reference  to  the  terms  of  a  contract,  it  is 
implied  that  the  purchaser  is  to  have  an  indefeasible  title;  and  although  the  ven- 
dor may  have  entered  into  a  contract  that  he  shall  not  be  bound  to  produce  a  title, 
yet  the  terms  of  the  contract  may  be  such  that  if  it  appears  aliunde  that  he  has 
no  title,  and  can,  therefore,  give  the  purchaser  nothing,  the  court,  in  such  a  case, 
would  not  make  a  decree  for  specific  performance.    The  meaning  of  specific  per- 
formance is  that  there  shall  be  conveyed  what  the  vendor  has  contracted  to  sell  to 
the  purchaser." 

s  Sugd.  17;  Forster  v.  Hoggart,  15  Q.  B.   155;  Hume  v.  Bentley,  5DeG.  ft 
Sm.  520;  Hoy  T.  Smythies,  22  Beav.  510;  Nott  v.  Riciird,  22  Beav.  307. 


30  MARKETABLE    TITLE    TO    REAL   ESTATE. 

if  there  be  any  reasonable  doubt  or  misapprehension  as  to  the  mean- 
ing of  the  particulars  and  conditions,  they  will  be  construed  in  favor 
of  the  purchaser.1  It  seems,  also,  that  any  undertaking  on  the  part 
of  the  vendor  with  respect  to  the  title  will,  as  a  general  rule,  be 
strictly  construed  in  favor  of  the  purchaser.2 

Independently  of  any  express  stipulation  in  the  particulars  and 
conditions,  there  may  be  special  circumstances  showing  that  the 
vendor's  title  was  not  to  be  called  for,  and  that  the  purchaser  was  to 
take  the  title  such  as  it  was.3  But  if  the  contract  stipulate  that  the 
vendor  shall  deduce  and  make  a  good  title,  he  must  do  so,  although 
the  purchaser  be  aware  of  objections  to  the  title.4 

Charges  upon  the  estate,  or  restrictions  upon  the  purchaser's  right 
of  absolute  enjoyment,  the  release  of  which  cannot  be  procured  by  the 
vendors,  or  which  do  not  fairly  admit  of  compensation,5  or  of  which 
the  purchaser  has  no  notice,6  should  be  stated  in  the  particulars 
of  sale,  otherwise  the  purchaser  may,  in  many  cases,  avoid  the 
sale.7 

If  the  attention  of  the  purchaser  be  drawn  to  objectionable  con- 
ditions of  sale,  he  may  be  bound  by  them  if  he  makes  his  bid  without 
objection.8 

1  Dart  V.  &  P.  (5th  ed.)  109;  Taylor  v.  Martindale,  1 Y.  &  C.  (C.  C.)  661;  Symons 
v.  James,  Id.  490;  Seaton  v.  Mapp,  2  Coll.  C.  C.  562;  Nouaille  v.  Flight,  7  Beav. 
521;  Smith  v.  Ellis,  14  Jur.  682;  Graves  v.  Wilson,  25  Beav.  290;  Brumflt  v. 
Morton,  3  Jur.  (N.  S.)  1198;  Jacksoe  v.  Whitehead,  28  Beav.  154;  Swaisland  v. 
Dearsley,  29  Beav.  430. 

'Dart  V.  &  P.  (5th  ed.)  110;  Dawes  v.Betts,  12  Jur.  412. 

*Dart  V.  &  P.  (5th  ed.)  151;  Richardson  v.  Eyton,  2  De  G.,  M.  &  G.  79; 
Godson  v.  Turner,  15  Beav.  46. 

4 1  Sugd.  Vend.  337;  Burnett  v.  Wheeler,  7  M.  &  W.  364. 

B8ugd.  5,  6,  311,  312;  Dart.  V.  &  P.  (5th  ed.)  116,  117;  Torrance  v.  Bolton,  L. 
R,  14  Eq.  124;  8  Ch.  App.  118.  See  "  Compensation  for  Defects,"  post,  §325. 

« Hall  v.  Smith,  14  Ves.  426;  Pope  v.  Garland,  4  Y.  &  C.  394;  Patterson  v. 
Long,  6  Beav.  590;  Lewis  v.  Bond,  18  Beav.  85. 

1  Turner  v.  Beaurain,  Sugd.  312;  Burwell  v.  Brown,  1  Jac.  &  W.  72;  Seaman 
v.  Vawdrey,  16  Ves.  390;  Ramsden  v.  Hirst,  6  W.  R.-349;  Shackletonv.  Sutcliffe, 
1  DeG.  &Sm.  609;  Coverly  v.  Burrell,  Sug.  27;  Ballard  v.  Way,  1  M.  &  W. 
520. 

•Dart  V.  &  P.  110.  Thus,  when  the  conditions  were  "  catching"  or  decep- 
tive, and  the  purchaser  inquired  whether  a  good  marketable  title  could  be  made, 
and  the  vendor's  agents  refused  to  insert  any  such  statement  in  the  contract,  but 
declared  that  a  good  title  could  be  made  under  the  existing  conditions,  the 


IMPLIED  AND  EXPRESS  AGREEMENTS  AS   TO  THE  TITLE.         31 

A  stipulation  that  the  sale  shall  be  void  if  the  purchaser  does  not 
pay  the  purchase  money,  or  if  the  vendor  cannot  make  a  good  title, 
at  a  specified  time,  will  not  justify  either  party  in  arbitrarily  defeat- 
ing the  sale  by  declaring  that  he  cannot  pay  the  purchase  money  in 
the  one  case  or  make  the  title  in  the  other  at  the  appointed  time. 
Either  party,  upon  the  default  of  the  other,  may  avoid  the  sale,  but 
cannot  elect  to  avoid  it  by  merely  declaring  his  inability  to  perform 
the  contract.1 

Verbal  declarations  by  the  auctioneer,  at  the  time  of  sale,  will 
not,  as  a  general  rule,  be  admitted  for  the  purpose  of  contradicting, 
explaining  or  adding  to  the  particulars  and  conditions  of  the  sale.2 
But,  while  such  declarations  are  inadmissible  at  law  on  behalf  of 

purchaser  was  required  to  take  the  title.     Hyde  v.   Dallaway,  6  Jur.   119;  4 
Beav.  606. 

1  1  Sugd.  23;  Roberts  v.  Wyatt,  2  Taunt.  268;  Rippingall  v.  Lloyd,  2  Nev. 
&  Man.  410;  Page  v.  Adam,  4  Beav.  269;  Malins  v.  Freeman,  4  Bing.  N.  C.  395; 
Wilson  v.  Carey,  10  M.  &  W.  641.  The  following  observations  by  Mr.  Dart,  on 
the  utility  of  unusual  conditions  of  sale,  may  be  of  use  in  those  localities  where  it 
is  the  custom  to  pay  particular  attention  to  conditions  respecting  the  title: 
' '  Lastly,  it  may  be  remarked  that  those  conditions  which  to  an  unprofessional 
eye  appear  the  simplest,  are  often  the  most  dangerous,  and  those  which  appear 
difficult  and  complex  to  the  unlearned  purchaser  may  not  unfrequently  produce 
an  impression  favorable  to  the  title  upon  the  mind  of  his  legal  adviser.  The  con- 
veyancer who,  upon  the  purchase  of  a  large  estate,  peruses  a  series  of  special 
stipulations,  which  have  evidently  been  framed  with  reference  to  points  which 
might  be  made  matters  of  serious  annoyance  by  litigious,  but  are  of  little 
practical  importance  to  the  willing  purchaser,  is  naturally  disposed  to  believe 
that  no  real  difficulties  exist  where  minor  objections  have  been  so  carefully  antici- 
pated; and,  on  the  other  hand,  nothing  is  more  common  than  to  see  conditions 
whose  concise  simplicity  disarms  the  suspicion  of  the  unprofessional  reader,  but 
whose  sweeping  clauses  reduce  counsel  to  the  dilemma  of  either  advising  a  client 
to  complete,  under  serious  uncertainty,  whether  he  will  acquire  even  a  tolerably 
safe  holding  title,  or  of  involving  him  in  inquiries  which  are  almost  sure  to  be 
heavily  expensive,  and  may  probably  prove  wholly  unsatisfactory.  The  writer 
may  also  be  allowed  to  add,  as  the  result  of  a  somewhat  wide  experience,  that, 
in  his  opinion,  the  number  of  seriously  defective  and  dangerous  titles,  which,  at 
the  present  day,  are  brought  into  market  and  passed  off  upon  purchasers  under 
the  cover  of  special  conditions  of  sale,  is  much  larger  than  is  commonly  supposed." 
Dart  V.  &  P.  (5th  ed.)  176. 

1  Sugd.  Vend.  15,  where  such  declarations  are  referred  to  as  the  "  babble  of  the 
auction  room."  Dart  V.  &  P.  (5th  ed.)  110;  1  Jac.  &  W.  639;  Higginson  v. 
Clowes,  15  Ves.  521;  Manser  v.  Back,  6  Ha.  443;  Goss  v.  Lord  Nugent,  5  B.  & 
A.  58;  2  N.  &  M.  28;  Vandever  v.  Baker,  13  Pa.  St.  121. 


32  MARKETABLE    TITLE    TO    BEAL   ESTATE. 

either  plaintiff  or  defendant,1  they  will  in  equity  be  admitted  in 
favor  of  the  purchaser  when  sued  for  specific  performance.2  Parol 
evidence  of  declarations  at  the  time  of  sale  is  inadmissible  in  equity 
in  favor  of  the  vendor-plaintiff,  even  though  the  purchaser  expressly 
agreed  to  abide  by  the  declarations.3  Nor  can  the  purchaser  avail 
himself  of  such  evidence  as  plaintiff  in  equity.4  If  statements  be 
made  at  the  sale  varying  from  the  particulars  and  conditions,  the 
purchaser  should  require  them  to  be  put  in  writing,  so  as  to  preserve 
his  rights  as  plaintiff  in  equity.5 

Personal  information  given  to  the  purchaser  as  to  incumbrances 
on  the  estate,  or  even  declarations  by  the  auctioneer  on  such  points, 
may  be  given  in  evidence,  either  by  the  vendor  or  the  purchaser,  as 
a  defense  in  a  suit  for  specific  performance,  but,  as  a  general  rule, 
has  been  held  inadmissible  on  behalf  of  the  plaintiff.6 

If  there  is  a  discrepancy  between  the  particulars  of  sale  and  an 
instrument  of  title  to  which  they  refer,  and  the  instrument  be  the 
more  favorable  to  the  purchaser,  the  vendor  will  be  bound  by  the 
instrument  and  must  show  a  title  in  conformity  thereto.7 

§  10.  Agreements  to  make  "  good  and  sufficient  deed." 
Inasmuch  as  the  law  implies  a  contract  that  the  purchaser  shall 
receive  a  good  title  to  the  land,  free  from  all  defects,  charges  and 
incumbrances,  it  would  seem  unnecessary  that  the  purchaser  should 
insert  in  the  contract  any  provision  assuring  him  such  a  title.  Indeed, 
the  anxiety  of  the  purchaser  to  protect  himself  by  such  a  precaution 
appears  sometimes  to  have  resulted  in  disaster,  for  there  have 
been  several  decisions  that  an  agreement  to  give  a  sufficient 
warranty  deed  referred  only  to  the  sufficiency  of  the  instru- 

1  Gunnis  v.  Erhart,  1  H.  Bl.  289;  Ford  v.  Yates,  2  Mann.  &  Q.  549;  Eden  v. 
Blake,  13  M.  &  W.  614;  Greaves  v.  Asblin,  3  Camp.  426;  Powell  v.  Edmunds,  12 
East,  6. 

*Sugd.  15;  Dart  V.  &  P.  (5th  ed.)  Ill;  Swaisland  v.  Dearsley,  29  Beav.  430. 
The  same  rules  apply  between  original  purchaser  and  sub-purchaser.  Dart,  Id.; 
Shelton  v.  Ldvius,  2  Cr.  &  J.  411.  The  rule  stated  in  the  text  has  been  applied  in 
America.  See  Averett  v.  Lipscombe,  76  Va.  409. 

*Higginson  v.  Clowes,  15  Ves.  521;  Clowes  v.  Higgingon,  1  Ves.  &  B.  524; 
Fife  v.  Clayton,  1  C.  P.  C.  N.  R.  352;  but  see  Swaisland  v.  Dearsley,  supra. 

«Sugd.  Vend.  15. 

•Dart  V.  &P.  (5th  ed.)  111. 

•Sugd.  Vend.  15;  Dart  V.  &  P.  (5th  ed.)  112;  15  Ves.  523;  1  Ves.  &  B.  524. 

'Dart  V.  &P.  (5th  ed.)  120. 


IMPLIED  AND  EXPRESS  AGREEMENTS  AS  TO  THE  TITLE.    33 

ment  tendered  by  the  vendor,  and  that  the  contract  was  satis- 
fied if  the  instrument  was  sufficient  as  a  conveyance,  though 
the  vendor's  title  was  bad.1  Unless  the  facts  clearly  showed 
that  the  parties  were  contracting  especially  with  reference  to  known 
defects  of  title,  it  would  be  difficult  to  perceive  any  grounds  upon 
which  such  decisions  could  be  rested,  since  no  man  in  his  senses 

1  Brown  v.  Covilland,  6  Cal.  566.  In  this  case  it  was  said  that  if  the  contract 
had  called  for  a  good  and  sufficient  warranty  deed,  instead  of  a  good  and  suffi- 
cient deed  merely,  the  vendors  would  have  been  compelled  to  convey  a  clear  title, 
and  not  merely  such  title  as  they  had,  whatever  it  might  be,  to  the  purchaser; 
citing  Tinny  v.  Ashley,  infra.  See,  also,  Green  v.  Covilland,  10  Cal.  332;  70 
Am.  Dec.  725.  Haynes  v.  White,  55  Cal.  38,  seems  to  be  at  variance  with  these 
cases.  Tinney  v.  Ashley,  15  Pick.  (Mass.)  552;  26  Am.  Dec.  620.  Gazley  v. 
Price,  16  Johns.  (N.  Y.)  267;  Parker  v.  Parmele,  20  Johns.  (N.  Y.)  132;  11  Am. 
Dec.  253.  Barrow  v.  Bispham,  6  Halst.  L.  (N.  J.)  110.  In  Hill  v.  Hobart,  16 
Me.  164,  a  distinction  is  drawn  between  an  agreement  to  make  a  deed,  or  a 
deed  described,  and  an  agreement  "  to  make  a  good  and  sufficient  deed  to 
convey  the  title "  to  the  premises.  In  the  first  case  it  is  said  that  the  contract 
is  performed  by  giving  such  a  deed  or  conveyance  as  the  contract  describes, 
however  deceptfve  the  title  may  be.  See,  also,  Tobin  T.  Bell,  61  Ala.  125. 
STKAHAN,  J.,  in  Thompson  v.  Hawley,  14  Oreg.  199:  "It  seems  to  me  that 
the  more  reasonable  rule  is  that  where  the  terms  of  the  contract  are  such  as  to 
bind  the  grantor  to  convey  by  good  and  sufficient  deed,  or  to  make  a  good 
and  sufficient  conveyance,  he  can  only  perform  his  agreement  by  making 
a  deed  that  will  pass  a  good  title.  But  if  it  clearly  appears  from  the 
contract  itself,  or  from  the  circumstances  accompanying  it,  that  the  parties 
had  in  view  merely  such  conveyance  as  will  pass  the  title  which  the 
vendor  had,  whether  defective  or  not,  that  is  all  the  vendee  can  claim  or 
insist  upon."  Citing  Porter  v.  Noyes,  2  Greenl.  (Me.)  22;  11  Am.  Dec.  30,  and 
cases  cited  there.  It  is  hardly  to  be  supposed,  however,  that  if  the  vendor  meant 
to  obligate  himself  only  to  convey  such  title  as  he  had,  he  would  describe  it  by 
such  an  ambiguous  expression  as  "  good  and  sufficient  deed."  See  extract  from 
Tindall  v.  Conover,  1  Spencer  (N.  J.  L.)  214;  11  Am.  Dec.  220,  infra.  In  Aiken 
v.  Sanford,  5  Mass.  494,  it  was  said  that  a  contract  to  convey  "by  a  good  and 
sufficient  warranty  deed  "  was  satisfied  by  a  conveyance  in  proper  form  and  regu- 
larly executed,  if  the  grantor  was  seized  so  that  the  land  passed  by  it.  The 
reporter  adds:  "  But  the  court  observed  that  they  did  not  mean  to  determine  that 
in  no  case  these  words  should  be  considered  as  applying  to  the  title.  If  the 
money  was  to  be  paid  on  receiving  the  deed,  it  might  be  a  reasonable  construc- 
tion that  a  good  and  sufficient  title  should  be  conveyed;  otherwise  the  purchaser 
might  part  with  his  money,  not  merely  for  the  land,  but  for  a  law  suit  also.  In 
the  present  case,  however,  the  money  was  to  be  first  paid,  and  the  plaintiff  might 
as  well  sue  on  the  covenants  in  his  deed  as  on  his  bond.  There  was,  therefore, 
no  reason  for  giving  a  construction  to  the  words  not  naturally  implied  by  them." 
These  observations  were  approved  in  Swan  v.  Drury,  22  Pick.  (Mass.)  488. 
5 


34  MARKETABLE    TITLE    TO   REAL   ESTATE. 

would  bargain  for  a  shadow  when  the  substance  was  equally  within 
his  reach.  In  the  absence  of  any  evidence  to  the  contrary,  it  would 
seem  that  in  a  contract  to  "  give  a  good  and  sufficient  deed,"  the 
words  "  good  and  sufficient  deed  "  are  a  mere  figure  of  speech, 
meaning  a  clear  and  unincumbered  title,1  especially  where,  as  is 
frequently  the  case,  the  contract  was  the  work  of  an  unskilled 
draughtsman.2  Accordingly  the  decisions  mentioned  have  been 
frequently  overruled  or  disapproved,  and  the  established  doctrine 
now  is  that  an  agreement  to  convey  land  by  a  good  and  sufficient 
warranty  deed  is  not  performed  by  the  mere  execution  of  a  war- 
ranty deed  sufficient  in  form,  if  the  title  of  the  grantor  be  open  to 
reasonable  doubt.3  Upon  a  like  principle  it  has  been  decided  that 

1  Tindall  v.  Conover,  1  Spencer  (N.  J.  L.),  214;  11  Am.  Dec.  220,  NORBIS,  J., 
saying:  "  Now  I  undertake  to  say  that  in  a  written  contract  for  the  sale  and  pur- 
chase of  lands  the  phrase  "a  good  and  sufficient  warranty  deed"  will  be  under- 
stood by  more  than  nine-tenths  of  mankind,  not  excepting  the  legal  profession, 
to  mean  a  good  and  sufficient  title.  That  if  a  person  intended  to  sell  and  another 
to  buy,  a  doubtful  or  uncertain  title,  or  anything  less  than  a  good  and  sufficient 
legal  title,  in  reducing  their  contract  to  writing,  they  would  not  use  this  phrase, 
but  would  define  the  interest  bargained  for." 

*  In  our  rural  districts  and  among  laymen  the  term  "lawful  deed  carries  no 
other  idea  than  an  unrestricted  conveyance  in  fee,  clear  of  incumbrances."  Eby 
v.  Eby,  5  Pa.  St.  466.  In  the  same  way  the  term  "  title  "  is  sometimes  vulgarly 
used  for  "  deed."  Thus  in  Gilchrist  v.  Buie,  1  Dev.  &  B.  Eq.  (N.  C.)  857,  where 
the  contract  was  "  to  make  a  sufficient  title  as  far  as  this  claim  extends  "  the  court 
said:  "  The  term  title  is  evidently  used  for  deed.  *  *  *  To  make  a  title,  there- 
fore, did  not  mean  to  make  out  one,  but  to  make  a  deed  and  to  pass  the  title." 
In  this  case  it  appeared  that  the  vendors  contracted  to  sell  and  the  purchaser 
expected  to  get  only  such  title  as  the  vendors  had. 

'Whitehurst  v.  Boyd.  8  Ala.  375;  Hunter  v.  O'Neill,  12  Ala.  39.  Here  the 
agreement  was  merely  "  to  make  a  deed."  Tarwater  v.  Davis,  7  Ark.  153 ;  44 
Am.  Dec.  534;  Pate  v.  Mitchell,  23  Ark.  590;  79  Am.  Dec.  114.  Thayer  v. 
White,  3  Cal.  229;  Haynes  v.  White,  55  Cal.  38.  (But  see  Brown  v.  Covil- 
laud,  6  Cal.  566.)  Abendroth  v.  Greenwood,  29  Conn.  356;  Dodd  v.  Seymour, 
21  Conn.  480;  Shouse  v.  Doane,  39  Fla.  95;  21  So.  807.  Frazier  v.  Boggs,  37 
Fla.  307;  20  So.  Rep.  245;  Home  v.  Rodgers,  113  Ga.  224;  Tyler  v. 
Young,  2  Scam.  (111.)  444;  35  Am.  Dec.  116;  Brown  v.  Cannon,  5  Gilm. 
(111.)  174;  Morgan  v.  Smith,  11  111.  199;  Conway  v.  Case,  22  111.  127;  Lull 
v.  Stone,  37  111.  224;  Thompson  v.  Shoemaker,  68  111.  256.  Clark  v. 
Redman,  1  Bl.  (Ind.)  379;  Warner  v.  Hatfield,  4  Bl.  (Ind.)  392;  Parker  v. 
McAllister,  14  Ind.  12.  Fitch  v.  Casey,  2  Green  (Io.).  300;  Shreck  v. 
Pierce.  3  Cl.  (Io.)  360.  In  this  case  the  court  pertinently  observed:  "The 
legal  effect  of  contracts  to  make  title,  or  to  deliver  a  deed  to  land  under 
a  contract  of  purchase,  is  generally  that  the  vendor  shall  make  a 
good  title.  As  a  general  rule  it  makes  but  little  difference  what  the  precise 
terms  of  the  contract  are  —  whether  the  vendor  agrees  to  make  title,  or  a 


IMPLIED  AND  EXPRESS  AGREEMENTS  AS  TO  THE  TITLE.         35 

a  conveyance  with  covenants  for  title  is  not  a  sufficient  perform- 
ance of  a  contract  of  sale  if  the  title  be  defective,  the  covenants 
being  no  such  valuable  consideration  for  the  purchase  money  as  to 
deprive  the  purchaser  of  the  right  to  detain  the  purchase  money  in 

good  title  —  or  to  make  a  deed,  or  a  warranty  deed  —  if  it  appears  that  he  is  nego- 
tiating to  sell  at  a  sound  price,  to  be  paid  or  part  paid  at  the  conveyance.  In 
such  cases,  usually  the  vendor,  without  a  nice  examination  of  words,  is  under- 
stood to  agree  for  a  good  title,  and  the  vendee  cannot  be  put  off  with  merely  a 
good  deed.  This  rule,  however,  does  not  preclude  those  cases  where  the  vendee 
appears  to  be  purchasing  the  vendor's  title,  such  as  it  may  be."  Bodley  v. 
McChord,  4  J.  J.  Marsh.  (Ky.)475;  Williams  v.  Potts,  1  J.  J.  Marsh.  (Ky.)  596; 
Brown  v.  Starke,  3  Dana  (Ky.),  318.  Porter  v.  Noyes,  2  Gr.  (Me.)  22;  11  Am. 
Dec.  30;  Brown  v.  Gammen,  14  Me.  276;  Sibley  v.  Spring,  12  Me.  460;  28  Am. 
Dec.  191,  the  court  saying  that  an  agreement  to  sell  and  convey  is  not  performed 
by  tender  of  a  sufficient  deed  in  form  if  there  is  an  incumbrance  on  the  land. 
Swan  v.  Drury,  22  Pick.  (Mass.)  488;  Mead  v.  Fox,  6  Cush.  (Mass.)  202;  Rob- 
erts v.  Bassett,  105  Mass.  409;  Linton  v.  Allen,  (Mass.)  17  N.  E.  Rep.  523. 
Dwight  v.  Cutler,  3  Mich.  575;  64  Am.  Dec.  105.  Cogan  v.  Cook,  22  Minn.  137; 
Murphin  v.  Scoville,  41  Minn.  262.  Wiggins  v.  McGimpsey,  13  Sm.  &  M.  (Miss.) 
532;  Feemster  v.  May,  13  Sm.  &  M.  (Miss.)  275;  53  Am.  Dec.  83;  Mobley  v.  Keys, 
13  Sm.  &  M.  (Miss.)  677;  Greenwood  v.  Ligon.  10  Sm.  &  M.  (Miss.)  615;  48  Am. 
Dec.  775.  Luckett  v.  Williamson,  31  Mo.  54  and  37  Mo.  395.  Beech  v.  Steele,  12 
N.  H.  88,  dictum;  Little  v.  Paddleford,  13  N.  H.  167;  Critchett  v.  Cooper, 
(N.  H.)  18  Atl.  Rep.  778.  Tindall  v.  Conover,  1  Zab.  (N.  J.  L.)  654.  In  Tin- 
dall  v.  Conover,  1  Spencer  (N.  J.  L.),  214;  11  Am.  Dec.  220,  it  was  said  that  the 
question  what  was  meant  by  an  agreement  to  deliver  a  good  and  sufficient  deed 
with  covenants  of  warranty  was  to  be  determined  by  the  terms  of  the  contract 
and  by  all  the  surrounding  circumstances.  Johnson  v.  Smock,  1  N.  J.  L.  106; 
Young  v.  Paul,  10  N.  J.  Eq.  401;  64  Am.  Dec.  456;  Lounsbery  v.  Locander,  25 
N.  J.  Eq.  557.  Gilchrist  v.  Buie,  1  Dev.  &  B.  Eq.  (N.  C.)  347,  dictum;  Lee  v. 
Foard,  1  Jones  Eq.  (N.  C.)  127,  tumble.  Pugh  v.  Chasseldine,  11  Ohio,  109;  37 
Am.  Dec.  414.  Thompson  v.  Hawley,  14  Oreg.  199;  Collins  v.  Delashmutt,  6Oreg. 
51;  Sanford  v.  Wheeler,  12  Oreg.  301.  Dearth  v.  Williamson,  2  S.  &  R.  (Pa.)  498; 
7  Am.  Dec.  652,  the  court  saying:  "  A  lawful  deed  of  conveyance  may  be  fairly 
understood  a  deed  conveying  a  lawful  or  good  title.  Romig  v.  Romig,  2  Rawle 
(Pa.),  249;  Colwell  v.  Hamilton,  10  Watts  (Pa.),  413;  Eby  v.  Eby,  5  Pa.  St.  466; 
Wilson  v.  Getty,  57  Pa.  St.  270.  Cunningham  v.  Sharp,  11  Humph.  (Tenn.)  120. 
Clute  v.  Robinson,  2  Johns.  (N.  Y.)  595,  a  leading  case;  Jones  v.  Gardner,  10 
Johns.  (N.  Y.)  266;  Judson  v.  Wass,  11  Johns.  (N.  Y.)  528;  6  Am.  Dec.  392; 
Tucker  v.  Woods,  12  Johns.  (N.  Y.)  190;  7  Am.  Dec.  305;  Van  Epps  v.  Schenec- 
tady,  12  Johns.  (N.  Y.)442;  7  Am.  Dec.  330;  Gastry  v.  Perrin,  16  Johns.  (N.  Y.) 
267;  Robb  v.  Montgomery,  20  Johns.  (N.  Y.)  15;  Carpenter  v.  Bailey,  17  Wend. 
(N.  Y.)  244;  Traver  v.  Halstead,  23  Wend.  (N.  Y.)  66,  the  court  saying:  "  It  was 
tho  title  to  the  premises  which  the  purchaser  stipulated  for,  not  a  piece  of  parch- 


36  MARKETABLE    TITLE    TO    KEAL   ESTATE. 

case  of  eviction  by  an  adverse  claimant.1  An  agreement  to  make 
a  "  clear  deed,"  when  the  purchaser  knows  that  the  vendor  has  only 
a  life  estate,  is  fully  performed  by  delivery  of  a  deed  conveying 
such  an  estate  as  the  vendor  has.2 

§  11.  Agreements  to  convey  by  "  quit  claim."     It  sometimes 
happens  that  the  purchaser  proposes  to  buy,  and  the  vendor  pro- 

ment,  good  in  form  but  waste  paper  in  effect  for  the  purpose  of  transferring  title." 
Lawrence  v.  Taylor,  5  Hill  (N.  Y.),  107;  Everson  v.  Kirtland,  4  Paige  Ch.  (N.  Y.) 
638;  27  Am.  Dec.  91;  McCool  v.  Jacobus,  7  Rob.  (N.  Y.)  115;  Pomeroy  v.  Drury, 
14  Barb.  (N.  Y.)  424;  Hill  v.  Ressegien,  17  Barb.  (N.  Y.)  164;  Atkins  v.  Bahrett, 
19  Barb.  (N.  Y.)639;  Morange  v.  Morris,  34  Barb.  (N.  Y.)  211;  Penfield  v.  Clark, 
62  Barb.  (N.  Y.)  584;  Fletcher  v.  Button,  4  Comst.  (N.  Y.)  400;  Story  v.  Conger, 
36  N.  Y.  673;  93  Am.  Dec.  546;  Burwell  v.  Jackson,  9  N.  Y.  536.  Pattersou 
v.  Goodrich,  3  Tex.  331;  Vardeman  v.  Lawson,  17  Tex.  16;  Phillips  v.  Hern- 
don,  78  Tex.  378;  Jones  v.  Phillips,  59  Tex.  610;  Jones  v.  Huff,  36  Tex.  678. 
Stow  v.  Stevens,  7  Vt.  27;  29  Am.  Dec.  139,  the  court  saying  that  it  would  be 
trifling  with  the  good  sense  of  the  law  to  hold  that  a  good  and  sufficient  deed 
means  only  a  deed  to  convey  what  title  the  grantor  had.  Lawrence  v.  Dole,  11  Vt. 
549.  In  Joslyn  v.  Taylor,  33  Vt.  470,  and  Preston  v.  Whitcomb,  11  Vt.  47,  it 
was  held,  however,  that  an  agreement  "  to  give  a  good  and  sufficient  warrantee 
deed  "  referred  only  to  the  kind  of  deed  to  be  executed,  and  not  to  the  quality 
of  the  title.  It  is  difficult  to  perceive  how  such  an  inference  can  be  drawn  from 
the  language  of  the  contract,  unsupported  by  evidence  aliunde  of  the  intention  of 
the  parties.  In  most  of  the  States  no  distinction  seems  to  have  been  made  between 
an  agreement  for  a  ' '  good  and  sufficient  deed  "  and  a  ' '  good  and  sufficient  war- 
ranty deed."  Goddin  v.  Vaughn,  14  Grat.  (Va.)  117;  Christian  v.  Cabell,  22 
Grat.  (Va.)  82.  Newberry  v.  French,  98  Va.  471;  36  S.  E.  519.  Young  v. 
Wright,  14  Wis.  144;  65  Am.  Dec.  303;  Falkner  v.  Guild,  10  Wis.  506; 
Bateman  v.  Johnson,  10  Wis.  1 ;  Davidson  v.  Van  Pelt,  15  Wis.  341 ;  Taft  v. 
Kessel,  16  Wis.  273;  Davis  v.  Henderson,  17  Wis.  106.  Moody  v.  Spokane, 
etc.,  R.  Co.  5  Wash.  699.  If  the  rule  established  by  the  foregoing  casea 
were  not  the  correct  one  the  vendor,  after  the  execution  of  the  contract, 
might  convey  away  the  land  to  another,  and  yet,  by  delivering  to  the  pur- 
chaser a  deed  good  and  sufficient  in  form,  escape  the  consequences  of  a  breach 
of  the  contract.  Lull  v.  Stone,  37  111.  224.  A  contract  to  make  a  "  lawful 
deed  of  conveyance  "  means  a  deed  conveying  a  lawful  or  good  title.  Wilson 
v.  Getty,  57  Pa.  St.  266.  A  deed  conveying  "  all  the  right,  title  and  interest " 
of  the  vendor  is  not  a  compliance  with  a  contract  to  execute  to  the  purchaser 
"  a  good  and  sufficient  deed  of  bargain  and  sale,  free  and  clear  of  all  incum- 
brances,  "  if  the  property  is  incumbered.  Rogers  v.  Borchard,  82  Cal.  347. 
If  the  purchaser  contract  for  "  a  deed  conveying  a  clear  title  "  he  may  reject 
a  warranty  deed  •  if  there  is  an  incumbrance  on  the  premises.  Roberts  v. 

Bassett,  105  Mass.  409. 
*Knapp  v.  Lee,  3  Pick.  (Mass.)  459,  disapproving  Lloyd  v.  Jewell,  1  Greenl. 

(Me.)    352;    10  Am.  Dec.  73. 
*Rohr  v.  Kindt,  3  Watts  &  S.    (Pa.)    563;   39  Am.  Dec.  53. 


IMPLIED  AND  EXPRESS  AGREEMENTS  AS  TO  THE  TITLE.          37 

poses  to  sell,  only  such  title  as  the  vendor  actually  has,  without 
regard  to  the  goodness  or  the  sufficiency  of  that  title.  In  other 
words,  the  purchaser  makes  a  chancing  bargain,  and  presumably  is 
compensated  for  the  risk  he  takes  in  a  diminished  valuation  of  the 
premises.  Therefore,  it  is  very  generally  held  that  if  the  vendor 
contract  only  to  convey  or  "  quit  claim  "  such  interest  as  he  may 
have  in  the  premises,  the  purchaser  is  without  relief  against  him  at 
law  or  in  equity.1  But  while  the  rule  that  the  parties  may  stipulate 
for  the  acceptance  of  the  title,  such  as  it  is,  is  elementary,  an  agree- 
ment to  that  effect  will  not  be  inferred  from  ambiguous  expressions, 
or  from  the  purchaser's  knowledge  of  the  existence  of  objections  to 
the  title.  Every  agreement  by  which  the  purchaser  consents  to 
take  a  defective  title  without  recourse  upon  the  vendor  should  be 
expressed  in  clear  and  unambiguous  terms.2  It  seems  that  the  pur- 
chaser's consent  to  take  a  defective  title  does  not  necessarily  deprive 
him  of  the  right  to  require  a  conveyance  with  covenants  for  title, 
since  it  may  be  that  the  protection  to  be  afforded  him  by  those 
covenants  is  the  sole  inducement  to  the  consent,  but  it  has  been 
said  by  the  most  eminent  authority  that  if  in  fact  the  purchaser 
consents  to  take  a  defective  title,  relying  for  his  security  on  the 
Tender's  covenants,  the  agreement  of  the  parties  should  be  particu- 
larly mentioned.3 

As  an  agreement  to  make  a  "  good  and  sufficient  deed"  relates  not 

1  Holland  v.  Rogers,  38  Ark.  251.  Fitch  v.  Willard,  73  111.  92.  Vail  v.  Nelson, 
4  Rand.  (Va.)  124;  Button  v.  Sutton,  7  Grat.  (Va.)  204;  56  Am.  Dec.  109;  Bailey 
T.  James,  11  Grat.  (Va.)  468;  62  Am.  Dec.  659.  Boyles  v.  Bee,  18  W.  Va.  520. 
McManus  v.  Blackmar,  47  Minn.  331.  Waldron  v.  Zollikoffer,  3  Iowa,  108, 
where  it  is  said  that  the  failure  to  give  a  full  price  for  property  is  ordinarily  a 
strong  circumstance,  but  not  a  conclusive  one,  to  show  that  the  parties  contracted 
in  view  of  defects,  or  for  the  actual  value  of  the  thing  sold.  In  Louisiana,  by 
statute,  an  express  exclusion  of  warranty  does  not  destroy  the  purchaser's  right 
to  require  security  against  eviction,  unless  he  bought  with  knowledge  of  the 
danger  of  eviction.  Dufief  v.  Boykin,  9  La.  Ann.  295;  Gautreaux  v.  Boote, 
10  La.  Ann.  137.  A  purchaser  who  buys  at  a  public  sale  under  an  announcement 
that  only  an  interest  is  to  be  sold,  and  that  if  there  is  no  title  the  purchaser  will 
get  none,  is  without  remedy  if  the  title  fails.  Such  an  announcement  dampens 
the  sale,  and  the  purchaser  gets  the  property  at  a  reduced  price  with  a  view  to 
speculation,  and  must  be  held  to  his  bargain.  Ellis  v.  Anderton,  88  X.  Car.  478. 

» 1  Sugd.  Vend.  (8th  Am.  ed.)  510,  511  (337);  Rawle  Cov.  (5th  ed.)  §  32. 

S2  Sugd.  Vend.  (8th  Am.  ed.)  230  (678). 


38  MARKETABLE    TITLE    TO   REAL    ESTATE. 

merely  to  the  form  of  the  deed,  but  to  the  sufficiency  of  the  title,1 
so  neither  is  an  agreement  to  convey  "  by  quit-claim  deed,"  a  stipu- 
lation merely  as  to  the  form  of  the  deed ;  it  is  a  condition  which 
requires  the  purchaser  to  take  just  such  title  as  the  vendor  has.2 

§  12.  Agreement  to  sell  right,  title  and  interest.  An  agree- 
ment to  sell  all  of  the  vendor's  right,  title  and  interest  in  the  prem- 
ises, is  a  sale  of  such  interest  only  as  the  vendor  may  have,  and 
the  contract  is  fully  performed  on  his  part  by  a  conveyance  of 
such  interest  without  regard  to  the  goodness  or  sufficiency  of  the 
title.8 

It  has  been  held,  however,  that  a  vender  so  contracting  must  have 
some  title  or  some  right,  even  though  it  consist  of  no  more  than  a 
naked  possession ;  otherwise  the  contract  would  be  nudum  pactum, 
and  the  purchaser  might  rescind.4  Whether  he  might  affirm  the 
agreement  and  have  damages  for  a  breach  of  the  contract  is  another 
question. 

It  has  been  held  that  an  agreement  to  convey  all  the  vendor's 
"  right,  title  and  interest,  with  full  covenant  of  warranty,"  is  not 
satisfied,  except  by  the  conveyance  of  an  indefeasible  estate.5 

i  i 

§  13.  Express  agreement  to  purchase  subject  to  liens  or 
defects.  If  the  purchaser  expressly  agrees  to  assume  the  pay- 
ment of  an  incumbrance  on.  the  purchased  premises,  he  not  only 
cannot  thereafter  object  to  the  title  because  of  the  incumbrance, 
but  as  between  himself  and  the  vendor,  he  makes  tho  debt  his  own, 
and  assumes  to  protect  the  vendor.6  It  has  been  held,  however, 
that  a  mere  agreement  to  take  "  subject  to  "  an  incumbrance,  does 
not  bind  the  purchaser  to  discharge  the  incumbrance.7 

1  Ante,  p.  33. 

s  McManus  v.  Blackmar.  47  Minn.  331. 

'Tweed  v.  Mills,  L.  R.,  1  C.  P.  39;  Johnston  v.  Mendenhall.  9  W.  Va.  112; 
Babcock  v.  Wilson,  17  Me.  372;  35  Am.  Dec.  263;  Herrod  v.  Blackburn,  56  Pa. 
St.  103;  94  Am.  Dec.  49. 

4  Johnson  v.  Tool,  1  Dana  (Ky.)(  479;  25  Am.  Dec.  162. 

5  Lull  v.  Stone,  37  111.  155. 

•  See  upon  this  subject  Sheld.  Subrogation  (2d  ed.)  §  85;  Taylor  v.  Preston,  79 
Pa.  St.  436;  Burke  v.  Gummey,  13  Wright  (Pa.),  518;  Campbell  v.  Shrum,  3 
Watts  (Pa.),  60;  Woodward's  Appeal,  2  Wright  (Pa.),  322;  Moore's  Appeal,  88  Pa. 
St.  450;  32  Am.  Rep.  469;  Taintor  v.  Hemraingway,  18  Hun  (N.  Y.),  458;  Kruger 
T.  Adams,  13  Neb.  100. 

1  Lewis  v.  Day,  53  Iowa,  575,  and  cases  cited. 


IMPLIED  AND  EXPRESS  AGREEMENTS  AS   TO  THE  TITLE.         39 

It  has  also  been  held  that  if  the  purchaser  merely  agreed  to  take 
the  property  subject  to  a  mortgage,  he  might  reject  a  conveyance 
containing  a  provision  that  he  should  assume  the  payment  of  the 
mortgage,  the  effect  of  such  provision  being  to  render  him  person- 
ally liable  for  any  deficiency,  in  case  the  land  should  be  insufficient 
to  satisfy  the  mortgage ;  a  state  of  affairs  often  found  to  exist  after 
a  rapid  decline  of  speculative  values.1 

It  has  been  held  that  if  the  vendor  contract  in  express  terms  to 
convey  a  "  perfect  title  "  to  the  purchaser,  he  will  not  be  absolved 
from  his  obligation  by  a  further  provision  of  the  contract  that  if 
the  purchaser  was  compelled  to  pay  any  lien  on  the  property  the 
amount  so  paid  should  be  deducted  from  the  purchase  money.  It 
was  considered  that  the  provision  in  question  was  solely  for  the 
benefit  of  the  purchaser,  and  that  if  there  was  an  incumbrance  on 
the  property,  he  might  abandon  the  contract  notwithstanding  his 
power  to  apply  the  purchase  money  to  the  incumbrance.2  The  gen- 
eral rule,  however,  is  that  the  purchaser  must  apply  the  unpaid  pur- 
chase money  to  the  satisfaction  of  valid  incumbrances.* 

When  the  purchaser  binds  himself  to  pay  rent  if  the  title  fails, 
he  cannot,  on  failure  of  the  title,  recover  damages  from  the 
vendor.4 

*  Kohner  v.  Higgins,  42  N.  Y.  Super.  Ct.  4 ;  Mellon  r.  Webster,  5  Mo.  App. 
449. 

1  Lewis  v.  White,  16  Ohio  St.  444.  This  was  an  action  by  the  vendor  against 
the  purchaser  for  breach  of  the  contract.  The  case  seems  to  be  in  conflict 
with  Devling  v.  Little,  26  Pa.  St.  502. 

*See  post,  §  245. 

4  Cross  v.  Freeman,  22  Tex.  Civ.  App.  209;   54  S.  W.  246. 


CHAPTER  IV. 

OF  THE  SUFFICIENCY  OF  THE  CONVEYANCE  TENDERED  BY  THE 

VENDOR. 

GENERAL  OBSERVATIONS.     §  14. 

ESSENTIAL  REQUISITES  OF  THE  CONVEYANCE.    §  15. 
Material,  printing,  etc.    §  16. 
Date.    §17. 
Parties.    §  18. 
Word*  of  conveyance.    §  19. 
Description  of  the  premises.    §  20. 
Description  of  estate  or  interest  conveyed.    §  21. 
Signature  and  seal.    §  22. 
Attestation  or  acknowledgment.    §  23. 

(a)  Venue  of  the  certificate.    %  24. 

(ft)  Name  and  official  designation  of  certifying  officer.    §  25. 

(c)  Name  of  grantor.    §  26. 

(d)  Annexation  of  deed.    §  27. 

(«)  Jurisdiction  of  certifying  officer.    §  28. 

(/)  Personal  acquaintance  with  grantor.    §  29. 

(g)  Fact  of  acknowledgment.    §  80. 

(A)  Privy  examination  of  wife.    §  81. 

(»)  Explanation  of  content*  of  deed.    §  32. 

(fc)  Voluntary  act  of  wife.     §33. 

(0  Wish  not  to  retract.    §  34. 

(m)  Reference  to  seal.    §  35. 

(n)  Date  of  certificate.    %  36. 

(o)  Signature  of  officer.    §37. 

(p}  Abbreviation  of  official  designation.    %  38. 

(g)  Seal  of  officer.    §  39. 

(r)  Surplusage  and  clerical  mistakes.    %  40. 

(*)  Amendment  of  certificate.    %  41. 
Reservations,  restrictions  and  conditions.     §  42. 
Waiver  of  objections  to  the  conveyance.    §  43. 

§  14.  GENERAL  OBSERVATIONS.  When  the  vendor  prepares 
his  conveyance  and  tenders  it  to  the  purchaser,  the  latter  may 
reject  it  and  insist  that  there  has  been  a  breach  of  the  contract, 
either  (1)  Because  the  conveyance  and  its  covenants  are  not  such  as 
he  is  entitled  to  demand ;  or,  (2)  Because  the  title  is  not  such  as  the 
vendor  has  contracted  to  convey.  A  defective  conveyance,  pre- 
pared and  tendered  by  the  vendor,  would  not  constitute,  strictly 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   41 

speaking,  a  defect  in  the  vendor's  title.  But  inasmuch  as  the  pur- 
chaser's  title  would  be  incomplete  without  the  execution  of  a  suffi- 
cient conveyance,  it  has  been  deemed  proper  to  include  that  subject 
in  the  scope  of  this  work. 

In  England  the  purchaser  is  required  to  prepare  and  tender  to 
the  vendor  a  conveyance  to  be  executed  by  him,  and  the  same  rule 
exists  in  some  of  the  American  States ;  but  the  general  rule  in  those 
States  is  that  the  vendor  shall  prepare  and  deliver  to  the  purchaser 
a  proper  conveyance  of  the  premises.1 

The  conveyance  musfy  of  course,  be  sufficient  in  form  to  pass  the 
interest  to  which  the  purchaser  is  entitled  under  the  contract.2  We 
have  already  seen  that  a  conveyance  sufficient  in  form  as  a  mere 
medium  for  transferring  title  cannot  be  held  a  performance  of  a 
contract  to  make  a  "  good  and  sufficient  deed,"  if  the  vendor  has 
not  such  title  as  the  purchaser  may  require.8 

An  agreement  "  to  sell "  lands  obliges  the  vendor  to  make  a 
proper  conveyance.4  The  conveyance  must  be  witnessed  or 
acknowledged  by  all  the  parties,  and  have  the  necessary  certificates 
attached,  so  that  it  may  be  admitted  to  record  at  once.8 

The  conveyance  must  also  contain  all  the  covenants  to  which  the 
purchaser  is  entitled.6  Too  much  importance  cannot  be  attached  to 
this  requisite,  since  upon  these  depends  his  right  to  relief  in  case  he 
loses  the  estate  after  the  conveyance  has  been  accepted.7  It  has 
been  held  that  the  purchaser  has  no  right  to  inspect  the  deed  pre- 
pared by  the  vendor  before  paying  the  purchase  money  unless  the 
contract  so  provides.8 

1  Post,  §  88. 

1  But  a  conveyance  sufficient  to  pass  all  of  the  vendor's  interest  need  not  follow 
the  language  of  the  contract  and  purport  to  convey  "  all  the  right,  title  and  inter- 
est "  of  the  vendor.  Brown  v.  Bellows,  4  Pick.  (Mass.)  178. 

•Ante,  §  10. 

4  Hoffman  v.  Fett,  39  Cal.  109;  Smith  v.  Haynes,  9  Greenl.  (Me.)  128;  Dart 
V.  &  P.  (5th  ed.)  130.  And,  e  converse,  an  agreement  to  "execute  and  deliver  a 
deed  "  is  an  agreement  to  sell  the  land.  Martin  v.  Colby,  42  Hun  (N.  Y.),  1. 

•Tapp  v.  Beverley,  1  Leigh  (Va.),  80;  Botto  v.  Berges,  47  La.  Ann.  959;  17  So. 
Rep.  428. 

•  Post,  §§  67,  68. 

» Rawle  Cov.  for  Title  (5th  ed.),  §  320;  post,  chap.  27. 

•Papin  v.  Goodrich,  103  111.  86. 
6 


42  MARKETABLE    TITLE    TO    BEAL   ESTATE. 

§  15.    ESSENTIAL  REQUISITES  OF  THE  CONVEYANCE.       The 

principal  points  to  which  the  attention  of  the  purchaser  is  to  be 
directed  in  determining  the  sufficiency  of  the  conveyance  tendered 
to  him  by  the,  vendor  are  :  That  it  be  written  or  printed  upon  paper, 
parchment  or  other  equally  convenient  or  substantial  material ;  that 
there  be  one  or  more  correctly  designated  grantors  and  grantees ; 
that  the  grantors  are  competent  to  convey,  and,  when  they  act  in  an 
official  capacity,  have  employed  all  necessary  formalities  in  the  exe- 
cution of  the  deed ;  that  proper  and  necessary  words  of  conveyance 
have  been  employed ;  that  the  granted  premises  have  been  accu- 
rately and  properly  described,  and,  in  some  of  the  States,  that  the 
conveyance  be  under  seal,  attested  by  subscribing  witnesses  and 
acknowledged  before  some  officer  competent  to  take  and  certify 
acknowledgments.  The  foregoing  essential  requisites  of  a  convey- 
ance, as  between  vendor  and  purchaser,  are  further  considered  in 
the  following  pages.  It  should  be  observed  here,  however,  that  a 
deed  may  be  sufficient  to  support  a  title  in  ejectment,  and  yet  not 
such  a  conveyance  as  the  purchaser  may  require.  For  example,  in 
those  States  in  which  the  common  law  prevails,  a  deed  without  a 
signature,  as  has  been  already  observed,  is  valid.  But  it  is  appre- 
hended that  no  purchaser  could  be  compelled  to  accept  such  an 
instrument  as  a  sufficient  deed ;  for  if  he  should  offer  to  resell  the 
premises,  the  want  of  a  signature  to  the  deed  under  which  he  holds 
would,  beyond  question,  be  made  the  ground  of  objection  to  his 
title.  And  while  the  objection  might,  after  litigation,  be  adjudged 
untenable,  he  should  not  be  required  to  accept  a  conveyance  so 
irregular  in  form  as  to  render  his  title  unsatisfactory  to  a  purchaser. 
So,  also,  where  the  description  is  so  vague  and  uncertain  as  to  make 
necessary  a  resort  to  parol  evidence  to  identify  the  premises.  And, 
generally,  it  may  be  said  that  the  purchaser  may  reject  the  convey- 
ance whenever  its  sufficiency  is  in  any  degree  a  matter  of  legal 
doubt,  upon  the  same  principle  which  permits  him  to  reject  a  title 
concerning  which  there  is  a  reasonable  doubt.1  No  hardship  can 
result  to  the  vendor  from  these  requirements,  since  he  may  always 
remove  the  objection  at  a  trifling  expense. 

The  vendor  has  a  right  to  prepare  and  tender,  and  the  purchaser 
is  bound  to  accept,  a  conveyance  correcting  errors  or  misdescriptions 

1  Post,  chap.  31. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOE.   43 

contained  in  a  former  conveyance.  If  the  vendor  be  dead,  his  heirs, 
or  a  commissioner  of  the  court,  should  make  and  tender  the 
amended  conveyance.1  By  consent  of  parties,  a  deed  defectively 
executed  may  be  corrected  by  interlineations,  reacknowledged  and 
recorded  anew,  and  may  be  presumed  to  be  redelivered  as  of  the 
new  date,  so  as  to  take  effect  therefrom.2  In  some  of-  the  States  a 
deed  of  bargain  and  sale  must  be  supported  by  a  valuable  considera- 
tion, pecuniary  or  otherwise.3  Wherever  this  rule  exists,  the  pur- 
chaser should  see  that  the  consideration  is  expressed  in  the  deed 
which  is  tendered  to  him  by  the  vendor.  It  is  true  that  the  exist- 
ence of  the  consideration,  if  not  recited  in  the  deed,  may  be  shown 
by  evidence  aliunde  y4  but  the  conveyance  which  the  purchaser  is 
to  receive  should,  if  possible,  afford  no  occasion  for  a  query  as  to  its 
sufficiency,  if  he  should  desire  to  resell  the  estate. 

§  16.  Material,  printing,  erasures,  etc.  Deeds  have  always 
been  written  or  printed  upon  paper  or  parchment,  and  the  extreme 
improbability  of  a  departure  from  this  custom  makes  the  question 
of  the  validity  of  a  deed  written  or  engraved  upon  other  materials 
practically  unimportant.  If,  however,  a  deed  should  be  written  or 
printed  upon  some  material  similar  to  and  forming  a  convenient  sub- 
stitute for  paper  or  parchment,  it  is  apprehended  that  a  purchaser 
could  not  decline  to  receive  it.  A  deed  engraved,  written  or  printed 
upon  stone,  metal,  wood  or  other  bulky  and  inconvenient  material 
might  perhaps  be  received  as  evidence  of  title  in  ejectment.5  But 
there  can  be  no  doubt  that  a  purchaser  would  be  justified  in  rejecting 
such  an  instrument  if  tendered  by  the  vendor.  Deeds  are  usually 
written  with  ink,  but  they  are  not  liable  to  objection  because  wholly 
or  partly  in  print.  Even  the  signature  of  a  deed  may,  it  is  appre- 
hended, be  in  print,  all  danger  of  fraud  being  removed  by  the 
acknowledgment  of  the  deed  before  attesting  witnesses  or  a  certifying 
officer.6  For  the  same  reason  it  is  apprehended  that  a  deed  written 

1  Leslie  v.  Slusher,  15  Ind.  166;  Rush  v.  Truby,  11  Ind.  462. 
1  Fitzpatrick  v.  Fitzpatrick,  6  R.  I.  64;  75  Am.  Dec.  681. 
»  3  Washb.  Real  Prop.  368  (618). 

4  Id. 

5  In  2  Bouvier's  Inst.  389,  it  is  said  that  an  instrument  written  or  printed  on 
"  wood,  linen,  bark,  stone,  or  the  like,"  would  be  invalid  as  a  deed. 

'Such  a  signature  has  been  held  a  sufficient  compliance  with  the  Statute  of 
Frauds.     Browne  Stat.  Frauds,  §  356  (4th  ed.),  p.  441;  Devlin  on  Deeds,  §  185, 


44  MARKETABLE    TITLE    TO    KEAL   ESTATE. 

with  a  lead  pencil  would  be  held  valid.1  But  it  may  be  doubted 
whether  a  purchaser  might  not  lawfully  refuse  to  accept  a  deed  so 
written,  and  insist  upon  one  prepared  in  the  usual  manner. 

A  contract  to  convey  by  good  and  sufficient  deed  obliges  the 
vendor  to  tender  a  deed  so  drawn  and  executed  as  to  leave  no 
reasonable  doubt  of  its  legal  sufficiency  to  convey  the  land.  It 
must  be  free  from  all  such  interlineations  and  erasures  as  are 
reasonably  calculated  to  throw  doubt  upon  the  paper  as  a  valid 
conveyance.2 

§  17.  Date.  Regularly,  a  deed  should  be  dated,  but  the  fact  that 
it  has  no  date,  or  has  an  impossible  date,  will  not  render  it  void. 
The  true  date  may  be  shown.3  A  deed  being  an  executed  contract, 
it  is  immaterial  that  it  bears  date  on  a  Sunday ;  the  parties  being 
in  pari  deliclo.  the  courts  will  not  interfere  to  declare  the  instru- 
ment void,  as  it  sometimes  does  where  the  contract  is  executory.4 
The  date  may  be  inserted  either  at  the  beginning  of  the  deed,  or  at 
the  close,  in  the  testimonium  clause;  that  in  the  testimonium  clause 
is  to  be  treated  as  the  true  date,  if  it  be  later  than  the  one  expressed 
at  the  beginning  of  the  deed.5  Inasmuch  as  it  is  usual  and  cus- 
tomary to  insert  a  date  in  conveyances  of  real  estate,  and  the  want 
of  it  may  be  easily  supplied,  the  purchaser  should  require  that  the 
instrument  tendered  shall  be  complete  in  this  particular. 

§  18.  Parties  to  the  conveyance.  It  seems  unnecessary  to  say 
that  every  deed  must  contain  the  names  or  description  of  parties 
grantor  and  grantee.6  Yet  instances  exist  in  which  instruments, 
from  which  the  name  of  the  grantee,  through  carelessness  or  inatten- 

and  cases  there  cited.  But  where  a  statute  required  the  memorandum  to  be 
"  subscribed  "  by  the  party  to  be  bound,  it  was  held  that  a  printed  signature 
was  insufficient.  Vielle  v.  Osgood,  8  Barb.  (N.  Y.)  130;  Davis  v.  Shields,  2« 
Wend.  (N.  Y.)  351. 

1  Contracts  for  the  sale  of  land  written  in  lead  pencil  are  valid.  Clason  Y. 
Bailey,  14  Johns.  (N.  Y.)  484.  So  also,  a  will  or  codicil  to  a  will.  Raymes  r. 
Clarkson,  1  Phillim.  22. 

'Shouse  v.  Doane,  39  Fla.  95;  21  So.  807. 

8  Jackson  v.  Schoonmaker,  2  Johns.  (N.  Y.)  230.  The  date  is  no  part  of  the 
substance  of  a  deed,  and  not  necessary  to  be  inserted.  The  real  date  of  a  deed 
is  the  time  of  its  delivery.  Thompson  v.  Thompson,  9  Ind.  323:  68  Am.  Dec. 
638.  It  is  no  objection  to  a  deed  that  it  bears  date  prior  lo  the  vendor's 
acquisition  of  title.  Bledsoe  v.  Doe,  4  How.  (Miss.)  13. 

*  See  cases  cited  24  Am.  &  Eng.  Encyc.  of  L.  555. 
•Kurtz  v.  Hollingshed,  4  Cranch  C.  C.   (U.  S.)   180. 

•  Chase  v.  Palmer,  29  111.  306 ;  Whittaker  v.  Miller,  83  111.  381.    In  both  the*e 
cases  the  deed  had  been  executed  in  blank,  and  the  name  of  a  grantee  after- 
wards inserted  by  a  third  person.    Garnett  v.  Garnett,  7  T.  B.  Mon.  (Ky.)  545. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   45 

tiop,  has  been  omitted,  have  been  tendered  to  and  accepted  by  the 
purchaser.  The  parties  should  be  correctly  described  by  their  Chris- 
tian names  as  well  as  surnames.  And  while  an  incorrect  or  imperfect 
description  of  the  grantee  does  not  destroy  the  validity  of  a  deed 
as  a  muniment  of  title,  there  can  scarcely  be  any  doubt  that  a  pur- 
chaser would  not  be  required  to  accept  such  a  conveyance.1  There 
must  not  only  be  a  grantee  in  every  deed,  but  such  grantee  must 
be  a  person  or  corporation  who  can  take  and  hold  the  premises. 
Deeds  have  sometimes  been  held  void  because  of  uncertainty  or 
vagueness  in  the  description  of  the  grantee.3  Thus,  a  grant  to  the 
people  of  a  county  is  void  for  uncertainty.3  But  it  is  not  necessary 
that  a  grant  to  a  person  shall  describe  him  by  name,  if  he  be  other- 
wise so  described  that  he  may  be  identified.4  Hence,  a  grant  to  the 
"  children  of  A."  is  valid.5  So,  also,  a  deed  "  to  the  heirs  at  law  of 
a  deceased  person."6  But  a  deed  to  "  A.  and  his  heirs,"  A.  being 
dead  at  the  time  of  the  grant,  is  void.  In  such  a  case,  the  words 
"  his  heirs  "  are  words  of  limitation  and  not  words  of  purchase.7 
The  grantee,  unless  such  by  way  of  remainder,  must,  of  course,  be 
in  existence  at  the  time  of  the  grant.8  It  has  been  held  that  a  con- 
veyance to  a  fictitious  person  is  void.9  It  is  not  absolutely  indis- 
pensable that  the  name  of  the  grantee  shall  be  set  forth  in  the  grant- 
ing clause  of  the  deed ;  if  his  name  appear  in  the  habendum,  it  will 
suffice.10  Nor  will  a  deed  be  avoided  by  the  fact  that  the  grantor's 

1  Thus,  in  Peabody  v.  Brown,  10  Gray  (Mass.) ,  45,  a  deed  to  "Hiram  Gowing" 
was  held  valid  as  a  conveyance  to  "Hiram  G.  Gowing,"  though  there  was  such 
a  person  as  "  Hiram  Gowing,"  he  being  the  son  of  the  person  intended  as  grantee. 
And  many  cases  may  be   found  in  which  incorrect,  uncertain  and  doubful 
descriptions  of  the  grantee  have  been  aided  by  parol  evidence,  and  the  descrip- 
tion held  sufficient,  according  to  the  maxim  id  cerium  est  quod  reddi  potest. 
But  obviously  this  doctrine  has  no  application  to  a  case  in  which  the  purchaser 
stands  insisting  that  the  vendor  shall  tender  a  deed  free  from  misdescription. 

2  Jackson  v.  Cory,  8  Johns.  (N.  Y.)  385.    So,  also,  a  deed  to  the  "  estate  "  of 
a  certain  person  deceased.    Mclnerny  v.  Beck,  10  Wash.  515;  39  Pac.  Rep.  130. 

•Jackson  v.  Cory,  8  Johns.  (N.  Y.)  385;  Hornbeck  v.  Westbrook,  9  Johns. 
(N.  Y.)  73. 

4 1  Devlin  on  Deeds,  §  184. 

•Hogg  v.  Odom,  Dudley,  (Ga.)   185. 

4  Shaw  v.  Loud,  12  Mass.  447. 

7  Hunter  v.  Watson,  12  Cal.  363;  73  Am.  Dec.  543. 

•Newsom  v.  Thompson,  2  Ired.  (N.  C.)  L.  277;  Lillard  v.  Ruckere,  6  Yerg. 
i  Trim.)  64. 

•Muskingum  Val.  Turnpike  v.  Ward,  13  Ohio,  120.  But  see  Thoraaa  Y. 
Wyatt,  31  Mo.  188;  77  Am.  Dec.  640. 

"Berry  v.  Billings,  44  Me.  416;  69  Am.  Dec.  107. 


46  MARKETABLE    TITLE    TO'   REAL   ESTATE. 

name  does  not  appear  in  the  granting  clause,  if  it  can  be  supplied 
from  the  rest  of  the  instrument.1  The  full  names  of  the  parties 
should  be  correctly  set  forth  in  the  conveyance.  But  the  omission 
of  a  middle  name  will  not  invalidate  the  deed.2  2s"or  will  a  differ- 
ence in  the  spelling  of  the  name  of  the  grantor,  as  recited  in  the 
deed  and  as  signed  thereto,  be  material,  if  it  can  be  shown  that  they 
are  one  and  the  same  person,3  and  it  has  been  held  that  a  convey- 
ance to  a  person  by  a  wrong  baptismal  or  Christian  name  is  not  for 
that  reason  void.4  But,  of  course,  a  purchaser  should  reject  a  deed 
containing  such  an  irregularity.  The  burden  of  removing  or  explain- 
ing apparent  or  seeming  defects  should  not  be  imposed  upon  him. 

Where  the  purchaser  is  a  partnership,  the  conveyance  must  be 
made  to  the  individual  partners  jointly  as  tenants  in  common,  and 
the  partnership  may  reject  a  deed  in  which  the  grantee  is  the  firm 
itself,  e,  g.,  a  deed  to  A.  B.  &  Co.5  A  conveyance  to  A.  B.  &  Co. 
passes  the  legal  title  to  A.  B.  alone.6  A  deed  made  by  "A.  B., 
Executor,"  without  specifying  the  estate  of  the  testator,  and  signed 
by  the  executor  in  the  same  way,  is  sufficient  as  a  deed  executed  by 
him  in  a  representative  and  not  in  his  individual  capacity.7 

The  purchaser  is  also  entitled  to  require  a  conveyance  from  the 
person  appearing  of  record  to  be  the  owner,  though  he  be  in  fact  the 
mere  nominal  owner.8  A  contract,  by  several  to  convey  with  war- 
ranty is  not  performed  by  tendering  a  conveyance  signed  only  by 
one  of  the  vendors,  and  the  purchaser  may  reject  such  a  conveyance. 
He  has  a  right  to  have  the  warranties  of  all  those  with  whom  he 

1Mards  v.  Meyers,    (Tex.)    28  S.  W.  Rep.  693. 

"McDonald  v.  Morgan,  27  Tex.  503;  James  v.  Stiles,  14  Pet.  (U.  S.)  322, 
A  variance  in  the  middle  initial  letter  of  the  name  of  the  grantor,  as  written 
in  the  signature  and  in  the  body  of  the  deed,  will  not  avoid  the  deed. 
Erskine  v.  Davis,  25  111.  251. 

8Lyon  v.  Karn,  36  111.  362;  Tustin  v.  Faught,  23  Cal.  237;  Middleton  v. 
Findla,  25  Cal.  76. 

4  Stark  v.  Sigelow,  12  Wis.  234. 

51  Washb.  Real  Prop.    (3d  ed.)    573;  McMurray  v.  Fletcher,  24  Kans.  574. 

•Arthur  v.  Weston,  22  Mo.  378;  Beauman  v.  Whitney,  20  Me.  413. 

'Bobeock  v.  Collins,    (Minn.)  61  N.  W.  Rep.  1020. 

•Walter  v.  De  Graaf,  19  Abb.  N.  C.  (N.  Y.)  406.  In  this  case  the  apparent 
owner  contracted  to  give  a  warranty  deed  with  full  covenants.  The  convey- 
ance under  which  the  apparent  owner  held  was  absolute  in  form,  but  in  fact 
a  mortgage.  He  reconveyed  to  the  mortgagor,  and  a  warranty  deed  from  the 
latter  was  tendered  to  the  purchaser.  It  was  held  that  the  purchaser  was 
entitled  to  the  benefit  of  the  covenants  of  the  apparent  owner,  and  that  the 
deed  tendered  was  insufficient. 


SUFFICIENCY  OF  CONVEYANCE  TENDEBED  BY  THE  VENDOB.   47 

contracted.1  It  has  been  held  that  a  contract  to  make  a  good  and 
sufficient  deed,  entered  into  by  a  vendor  having  no  title,  would  be 
satisfied  by  a  tender  of  a  conveyance  from  the  real  owner.2  It 
Avould  seem,  however,  that  if  the  contract  entitled  the  purchaser  to 
covenants  of  warranty,  the  vendor  should  be  required  to  join  in  the 
conveyance  so  tendered. 

In  every  case  in  which  the  purchaser  is  entitled  to  demand  a  con- 
veyance with  covenants  for  title  by  the  vendor,  the  duty  devolves 
on  the  vendor  to  make  and  deliver  his  own  deed,  and  the  purchaser 
may  reject  the  deed  of  a  third  person.  He  is  entitled  to  the  cove- 
nants of  his  vendor.3 

But  a  deed  from  a  third  party  is  a  substantial  compliance  with  a 
covenant  to  convey,  unless  the  purchaser  is  entitled  to  covenants  of 
warranty  from  the  vendor.4  Such  a  deed,  however,  not  being 
within  the  terms  of  the  contract  of  sale,  the  burden  devolves  on 
the  vendor  to  show  that  the  purchaser  accepted  the  same  in  full 
performance  of  the  agreement.5 

The  purchaser  should  not  only  see  that  the  parties  to  the  convey- 
ance are  properly  named,  designated  or  described,  but  he  should 
insist  upon  the  execution  of  the  conveyance  by  all  parties  whose 
concurrence  in  the  deed  is  necessary  to  perfect  the  title.  If  the 
deed  be  that  of  the  husband,  he  should  see  that  the  wife  joins,  and 
vice  versa.  If  the  conveyance  be  by  one  who  has  an  equitable 
estate  only,  as  frequently  happens,  he  should  insist  that  the  party 
having  the  legal  title  shall  join  as  a  party  grantor.  Regularly,  the 
names  of  all  parties  executing  the  deed  should  be  set  out  therein, 
but  it  sometimes  happens  that  a  deed  poll  is  executed  by  a  person 

'Lawrence  v.  Parker,  1  Mass.  191;  2  Am.  Dec.  10;  Clark  v.  Redman,  1 
Blackf.  (Ind.)  379. 

2 13a.teman  v.  Johnson,  10  Wia.  1. 

3  Steiner  v.  Zwickey,  41  Minn.  448;  43  N.  W.  Rep.  376;  Crabtree  v.  Levinga, 
53  111.  526;  Yates  v.  Prior,  11  Ark.  76;  Taylor  v.  Porter,  1  Dana  (Ky.)  422; 
25  Am.  Dec.  165;  Royal  v.  Dennison,  (Cal.)  38  Pac.  Rep.  39;  George  v. 
Conhaim,  38  Minn.  338 ;  37  N.  W.  Rep.  391 ;  McNamara  v.  Pengilly,  64  Minn. 
543;  59  N.  W.  1055;  Meyers  v.  Markham,  90  Minn.  230;  96  N.  W.  787; 
Miner  v.  Hilton,  44  N.  Y.  Supp.  155;  15  App.  Div.  55. 

4Bigler  v.  Morgan,  77  N.  Y.  312;  Robb  v.  Montgomery,  20  Johns.  (N.  Y.) 
15.  The  vendee  cannot  be  required  to  accept  a  deed  from  a  third  person,  to 
whom  the  vendor  conveyed,  without  proof  that  no  dower  interest,  nor  tax, 
nor  assessment  lien  had  attached  since  such  conveyance.  Bonsinger  r. 
Erhardt,  77  N.  Y.  Supp.  577;  74  App.  Div.  1(10. 

•Slocum  v.  Bray,  S3  Minn.  240:   '0  N.  W.  Rep.  826. 


48  MARKETABLE    TITLE    TO   REAL   ESTATE. 

not  mentioned  as  one  of  the  grantors.  Whether  the  deed  will  be 
operative  as  to  such  person,  it  is  unnecessary  to  consider  here  ;  it 
suffices  to  say  that  the  purchaser  should  reject  such  an  irregular 
instrument,  and  require  the  name  to  be  inserted  in  the  proper  place. 
If  the  conveyance  is  made  in  an  official  or  representative  capacity, 
that  fact  should  appear  in  the  description  of  the  grantor ;  it  is  insuffi- 
cient that  the  deed  be  signed  by  the  party  in  the  capacity  in  which 
he  acts.1 

It  is  a  general  rule  that  the  purchaser  cannot  be  compelled  to 
accept  a  conveyance  executed  by  an  attorney  in  pursuance  of  a 
power,  unless  an  actual  necessity  for  the  execution  of  the  convey- 
ance in  that  form  appears.2  There  has  been  some  conflict  of 
opinion  as  to  the  validity  of  a  deed  purporting  on  its  face  to  be  the 
act  of  a  principal,  but  executed  and  signed  by  an  attorney  in  fact  in 
his  individual  capacity,  that  is,  without  the  name  of  the  principal  or 
the  addition  of  words  after  the  signature  of  the  attorney  to  show 
that  the  deed  is  not  his  individual  act,  but  the  act  of  the  principal. 
It  is  deemed  unnecessary  to  discuss  this  question  here,  or  to  refer 
to  the  decisions  either  way  upon  the  points.3  It  suffices  to  say  that 
the  purchaser  should  insist  that  the  recitals  in  the  body  of  the  deed 
shall  show  that  it  is  the  act  of  the  principal,  and  that  the  deed  shall 
be  signed  as  well  with  the  name  of  the  principal  as  with  that  of  the 
attorney,  thus,  "John  Smith,  by  his  attorney  in  fact,  William 
Brown." 

The  purchaser  should  also  be  careful  to  see  that  the  deed  is  exe- 
cuted by  a  person  having  power  and  authority  to  convey.  If  the 
grantor  be  an  executor,  administrator,  trustee,  attorney  in  fact,  pub- 
lic official,  officer  of  a  court,  officer  of  a  corporation,  or,  indeed,  any 
person  acting  en  auter  droit,  the  nature  and  extent  of  his  powers 
should  be  examined,  and  the  observance  of  all  required  formalities 
exacted.4  Particular  attention  should  be  paid  to  conveyances  of 

1  Bobb  v.  Barnum,  59  Mo.  394. 

»  2  Sudg.  Vend.  (8th  Am.  ed.)  214  (563). 

3  The  cases  will  be  found  collected  in  1  Devlin  on  Deeds,  §  377,  et  seq. 

4  A  power  of  attorney  to  convey  land  must  be  under  seal.     Plummer  v.  Rus- 
sell, 2  Bibb  (Ky.),  174.     A  misrecital  of  a  valid  power  of  attorney  in  a  deed,  exe- 
cuted in  pursuance  thereof,  is  no  objection  to  the  validity  of  the  deed.     Jones  v. 
Tarver,  19  Ga.  279.    A  deed  executed  by  an  attorney  in  fact,  with  provisions  in 
excess  of  his  authority,  will  be  void  as  to  such  provisions,  but  valid  in  other 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOE.   49 

corporate  property,  and  all  statutory  or  charter  provisions  as  to  the 
authority  of  the  officers  to  convey,  and  as  to  the  mode  of  convey- 
ance, should  be  literally  and  rigidly  followed. '  A  conveyance  of 
firm  property  should  be  signed  by  all  the  partners.  One  partner 
has  no  right  to  execute  a  deed  in  the  name  of  the  partnership  unless 
the  other  partners  are  standing  by  and  give  their  consent  or  confer 
power  upon  him  by  an  instrument  under  seal.1 

If  the  purchaser  be  entitled,  under  the  contract,  to  call  for  a  con- 
veyance of  a  clear  and  un  in  cumbered  title,  he  may  reject  a  convey- 
ance which  doos  not  contain  a  relinquishment  of  any  contingent 
right  of  dower  existing  in  the  premises.2 

§  19.  Words  of  conveyance.  The  granting  clause  of  a  deed 
requires  the  careful  attention  of  the  purchaser.  Of  course  the  use 
of  a  form  prescribed  by  statute  will  be  sufficient,  but  the  purchaser 
should  see  that  the  deed  contains  the  operative  words  of  conveyance 
found  in  the  form  or  their  equivalents.  Such  forms  are  usually 
brief,  being  intended  to  furnish  a  simple  and  convenient  mode  of 
conveyance,  but  it  is  generally  provided  that  they  shall  not  invali- 
date a  deed  in  the  "  common  law  "  or  lengthy  form.  Where,  how- 
ever, by  statute  or  common  law,  certain  technical  words  are  made 
necessary  in  a  conveyance,  equivalents  will  not  answer.3  Thus,  in 
some  of  the  States,  the  words  "  grant,  bargain  and  sell "  are  by 
statute  made  to  imply  certain  covenants  for  title,  and  in  others  the 
common-law  rule  that  the  word  "  heirs  "  is  necessary  in  the  creation 

respects.  Qimell  v.  Adams,  11  Humph.  (Tenn.)  283.  A  deed  with  blanks  filled 
by  an  agent  in  the  absence  of  the  grantor,  but  with  verbal  authority  from  him,  is 
roid.  Ingram  v.  Little,  14  Ga.  173;  58  Am.  Dec.  549.  If  the  deed  is  made  in 
pursuance  of  a  judicial  sale,  the  purchaser  should  see  that  the  sale  has  been  con- 
firmed. Fraser  v.  Prather,  1  McArth.  (D.  C.)  206;  2  Dan.  Ch.  Pr.  1454.  A  com- 
missioner acting  under  a  decree  of  court  can  convey  no  more  than  he  is  author- 
ized by  the  decree  to  convey.  Neel  v.  Hughes,  10  Gill  &  J.  (Md.)  7.  A 
conveyance  by  a  corporation  must  be  executed  in  the  corporate  name  and  under 
the  corporate  seal.  Hatch  v.  Barr,  1  Ohio,  390.  It  is  not  necessary  that  the 
deed  of  a  corporation  shall  recite  the  vote  authorizing  the  execution  of  the  deed. 
McDaniels  v.  Flower  Brook  Mfg.  Co.,  22  Vt.  274. 

1  Story  on  Partnership,  §  120. 

5  Polk  v.  Sumter,  2  Strobh.  L.  (S.  Car.)  81;  Jones  v.  Gardner,  10  Johna.  (N. 
T.)26«. 

« 1  Washb.  Real  Prop.  m.  p.  56  (3d  ed.)  671. 

7 


50  MAKKETABLE    TITLE    TO   REAL    ESTATE. 

of  an  estate  of  inheritance  still  exists.  Wherever  thig  is  the  case, 
the  purchaser  should  see  that  these  precise  words  are  employed  and 
should  reject  a  deed  which  does  not  contain  them.  Where  the 
statutory  form  of  conveyance  is  not  employed,  attention  should  be 
given  to  the  operative  words  of  conveyance  in  the  deed.  A  paper 
containing  no  words  of  conveyance  can  never  operate  as  a  deed,1 
and  yet  instruments  amounting  to  nothing  more  than  executory  con- 
tracts for  the  sale  of  lands  have  been  tendered  and  accepted  as  con- 
veyances by  persons  acting  without  competent  advice.  An  instru- 
ment in  which  the  only  words  of  grant  are  "  sell "  or  "  sign  over,"  * 
cannot  take  effect  as  a  deed.  No  estate  can  pass  by  deed  unless  it 
is  plainly  embraced  within  the  words  of  grant.8  But  a  deed  with- 
out sufficient  words  of  conveyance  in  the  granting  clause  will  pass  a 
fee  if  words  sufficient  for  that  purpose  appear  in  other  parts  of  the 
deed.4 

§  20.  Description  of  the  premises.  A  vast  number  of  cases  in 
which  deeds  have  been  held  inoperative  for  want  of  a  sufficient 
description  of  the  premises  may  be  found  in  the  reports.  The 
general  rule  is  that  a  description  from  which  it  is  possible  to  ascer- 
tain and  identify  the  land  intended  to  be  conveyed  is  sufficient.6 
We  need  not  inquire  here  whether  parol  evidence  will  be  received 
in  aid  of  an  unintelligible  description.  The  purchaser  may  avoid 

1  Brown  v.  Manter,  21  N.  H.  528;  53  Am.  Dec.  223.  An  instrument  under 
seal'acknowledging  receipt  of  the  consideration  for  the  sale  of  real  estate,  but 
containing  no  words  of  conveyance,  passes  no  title.  Pierson  v.  Doe,  2  Ind.  123. 

1  McKenney  v.  Settles,  31  Mo.  541.  But  see  Hutchins  v.  Carleton,  19  N.  H. 
487,  where  the  words  "  assign  and  make  over''  were  held  to  pass  a  fee,  and  Fash 
v.  Blake,  38  111.  363,  where  a  similar  decision  was  rendered.  The  words  "  to  go 
to"  are  sufficient  as  words  of  grant  (Folk  v.  Yarn,  9  Rich.  [S.  C.]  Eq.  303);  so, 
also,  the  word  "convey"  (Patterson  v.  Carneal,  3  A.  K.  Marsh.  [Ky.]  618;  13 
Am.  Dec.  208),  and  the  -word  "give"  in  a  deed  of  gift.  Pierson  v.  Armstrong,  1 
Iowa,  282;  63  Am.  Dec.  440. 

1  Ryan  v.  Wilson,  9  Mich.  262. 

4  Bridge  v.  Wellington,  1  Mass.  219. 

1  Devlin  on  Deeds,  §  1012.  Where  a  purchaser  takes  possession  of  a  rectangu- 
lar piece  of  ground  under  a  deed  which  gives  the  boundaries  of  three  sides  only 
of  the  rectangle,  the  court  will  supply  the  fourth  side;  and  it  is  no  defense  to  an 
action  for  the  purchase  money  that  the  error  in  the  description  leaves  an  out- 
standing interest  in  the  grantor  or  his  heirs.  Ray  v.  Pease,  (Ga.)  22  S.  E. 
Rep.  190. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   51 

trouble  of  that  kind  by  insisting  upon  a  full  and  accurate  description 
of  the  premises.  It  is  simply  a  matter  to  which  his  attention  should 
be  particularly  drawn.  The  deed  should  set  out  the  names  of  the 
State  and  county  in  which  the  land  lies,  and  also  the  range,  town- 
ship, section  and  quarter  section  of  which  it  forms  a  part,1  where 
those  subdivisions  are  in  use,  the  name  of  the  nearest  town,  village 
or  other  public  place  in  the  county,  and  the  direction  therefrom  in 
which  the  land  lies ;  then  follow  metes  and  bounds,  courses  and  dis- 
tances, references  to  known  monuments  and  natural  objects,  lands 
of  adjacent  proprietors,  public  highways,  water  courses  and  the  like, 
and  an  estimate  of  the  quantity  of  land  conveyed.  It  is  better 
that  a  deed  should  contain  all  of  these  items  of  description,  but  of 
course  they  are  not  all  indispensable,  if  from  a  part  of  them  the  land 
can  be  located  and  identified.  A  description  as  the  "  S.  £  of  the 
N.  E.  ^  of  S.  E.  £  "  of  a  section  was  held  fatally  bad,  there  being 
no  such  thing  as  the  "  southeast  half  "  of  a  section,  though  of  course 
there  might  be  a  southeast  quarter.2  A  description  of  the  land  con- 
veyed as  "  ten  acres,  more  or  less,"  of  a  certain  other  piece  of  land, 
without  showing  how  the  ten  acres  are  to  be  cut  off,  makes  the  deed 
void  for  uncertainty.3  Land  described  in  a  deed  must  be  suscepti- 
ble of  location,  that  is,  the  survey  must  be  made  to  close  as  to  the 
whole  tract,  or  some  definite  portion  thereof,  otherwise  the  deed  will 
be  void  and  inoperative.4  It  is  a  general  rule,  however,  that  if  the 
description  of  the  premises  given  in  a  deed  furnishes  a  sufficient 
means  of  locating  and  identifying  the  land  to  be  conveyed,  the  con- 
veyance will  be  sustained,  though  some  of  the  particulars  of 
description  may  be  erroneous  or  inconsistent.5  But  if  the  descrip- 
tion of  the  estate  include  several  particulars,  all  of  which  are  neces- 
sary to  ascertain  the  estate  intended,  no  estate  will  pass  except  such 
as  answers  to  every  particular.6  If  a  deed  contain  conflicting 
descriptions  of  equal  authority,  that  which  is  most  favorable  to  the 

1  In  the  description  of  lands  in  ejectment  or  in  a  conveyance,  it  suffices  to  give 
the  number  of  the  section,  township  and  range  according  to  the  public  surveys. 
Bledsoe  v.  Little,  4  How.  (Miss.)  13. 

•  Pry  v.  Pry,  109  111.  466. 

» Wilkinson  v.  Roper,  74  Ala.  140. 

'Wilson  v.  Inloes,  6  Gill  (Md.),  121. 

» Vose  v.  Bradstreet,  27  Me.  166;  Bell  v.  Woodward,  46  N.  H.  315. 

•  Worthington  v.  Hylyer,  4  Mass.  196,  per  PARSONS,  C.  J. 


52 


MARKETABLE    TITLE    TO   REAL    ESTATE. 


grantee  will  be  taken.1  If  there  be  any  doubt  about  what  property 
a  deed  conveys,  it  must  be  construed  most  strongly  against  the 
grantor.2  A  deed  which  contains  no  other  description  of  the 
premises  than  a  reference  to  another  deed  containing  a  full  descrip- 
tion is  sufficient.3  And  an  uncertain  description  may  be  cured  by 
a  reference  in  the  deed  to  other  conveyances.4  A  general  descrip- 
tion in  a  deed  will  govern  where  the  particular  description  by  metes 
and  bounds  as  given  is  uncertain  or  impossible.5  If  the  actual 
boundaries  of  land,  as  marked  by  a  surveyor,  can  be  shown,  the 
grantor,  in  a  conveyance  of  the  land,  will  hold  accordingly,  though 
the  description  by  courses  and  distances  be  incorrect.'  And  it  has 
been  held  that  a  conveyance  by  metes  and  bounds,  accompanied  by 
transfer  of  possession  and  marking  the  boundaries  by  natural 
objects,  will  pass  the  title,  though  no  particular  locality  be  set  forth 
in  the  deed.7 

But  while  a  defective  or  ambiguous  description  may  be,  in  many 
instances,  cured  by  parol  evidence,  a  purchaser  should  never  be 
required  to  accept  a  conveyance  open  to  that  objection,  for  two 
reasons  :  First,  because  the  want  of  an  adequate  and  precise  descrip- 
tion of  the  premises  tends  to  render  his  title  unmarketable  and 
objectionable  to  future  purchasers ;  and,  secondly,  because  a  con- 
veyance, though  admitted  to  record,  is  not  notice  to  subsequent 
purchasers,  unless  the  granted  premises  be  therein  so  plainly  and 
clearly  described  that  a  person  reading  the  deed  may  locate  and 
identify  the  property  therefrom.8 

If  it  be  intended  by  the  deed  to  convey  lands,  they  must  be 
referred  to  or  described  in  the  deed.  Thus  it  has  been  held  that  a  con- 
veyance of  the  "  assets  "  of  a  bank  would  not  pass  real  property  belong- 
ing to  the  bank  but  not  specifically  described  in  the  conveyance.9 

1  Vance  v.  Fore,  24  Cal.  435. 

*  Black  v.  Grant,  50  Me.  364. 

3  Glover  v.  Shields,  32  Barb.  (N.  Y.)  374;  Phelps  v.  Phelps,  17  Md.  120;  John- 
ston v.  Scott,  11  Mich.  232. 

4  Bowman  v.  Wettig,  39  111.  416. 

*  Sawyer  v.  Kendall,  10  Cush.  (Mass.)  241. 

« Mclver  v.  Walker,  9  Cranch  (U.  S.),  173;  Strickland  v.  Draughan,  88  N.  C.  315. 
'  Banks  v.  Ammon,  27  Pa.  St.  172. 
8  Banks  v.  Ammon,  27  Pa.  St.  172. 

*  Wilson  v.  Johnson,  (lud.)  38  N.  E.  Rep.  38. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   53 

§  21.  Description  of  estate  or  interest.  The  purchaser  should 
also  see  that  the  instrument  tendered  conveys  the  quantity  of  estate 
to  which,  by  the  contract,  he  is  entitled.  If,  by  the  contract,  he  is 
entitled  to  demand  a  conveyance  of  an  absolute  and  indefeasible 
estate  of  a  particular  description  in  fee  simple,  he  should  promptly 
reject  an  instrument  which  conveys  only  the  "  right,  title  or  inter- 
est" of  the  grantor  in  the  premises,  for  such  a  paper,  as  a  general 
rule,  amounts  to  no  more  than  a  quit  claim  or  release,  and  would 
not  estop  the  grantor  from  setting  up  an  after-acquired  title  to  the 
estate.1  If,  however,  there  be  an  express  conveyance  of  an  estate 
of  a  particular  description,  the  additition  of  the  words  "  and  all  the 
estate,  right,  title,  interest  and  demand  whatever "  of  the  grantor, 
would  not  convert  the  deed  into  a  mere  release.2  The  general 
rule  is  that  a  deed  shall  be  construed  to  pass  the  largest  estate 
which  the  grantor  may  have  in  the  premises,  unless  an  intention 
to  convey  a  lesser  estate  appears  from  the  instrument.3  It  fol- 
lows, then,  that  the  purchaser  cannot  reject  a  conveyance,  when 
tendered  to  him,  on  the  ground  that  the  quantity  of  estate  or  interest 
which  he  is  to  receive  is  not  therein  specifically  described.  He  is 
only  interested  to  see  that  the  instrument  does  not  convey  a  lesser 
estate  than  that  to  which  he  is  entitled.  A  grant  of  "  all  the  prop- 
erty I  possess  "  will  pass  an  estate  in  remainder.  And  a  conveyance 
"  of  all  right,  title,  interest  or  claim  to  any  land  descended  to  one 
from  A."  passes  any  equitable,  as  well  as  legal,  estate  so  descended.* 
The  purchaser,  of  course,  cannot  object  to  the  deed  tendered  him, 
on  the  ground  that  it  conveys  a  greater  right  or  interest  than  the 
grantor  may  lawfully  pass  or  assume,  assuming  that  the  purchase 
was  of  the  lesser  estate.  The  conveyance  will  operate  as  an  alien- 
ation of  just  such  interest  in  the  premises  as  the  grantor  actually 
had.5  Thus,  a  deed  by  a  joint  tenant,  or  tenant  in  common,  pur-^ 
porting  to  convey  the  whole  estate,  is  not,  for  that  reason,  void,  but 

'Post,  "Estoppel,"  §  218.  But  a  conveyance  of  a  "right,  title  and  interest" 
will  not  be  construed  to  be  a  mere  quit  claim,  if  an  intent  to  convey  an  estate  of 
a  particular  description  appear.  United  States  v.  Cal.  &  Oreg.  Land  Co.,  49  Fed. 
Rep.  496;  1  G.  C.  A.  330. 

» Dennison  v.  Ely,  1  Barb.  (N.  Y.)  810. 

*1  Shep.  Touch.  85,  ante,  §  5;  Stockett  v.  Goodman.  47  Md.  54. 

*Brantley  v.  Kee,  5  Jones  Eq.  (N.  C.)  332;  Barton  v.  Morris,  15  Ohio,  408. 

•3  Bl.  Com.  171;  Wisely  v.  Findlay.  3  Rand.  (Va.)  361. 


54  MARKETABLE    TITLE    TO   REAL   ESTATE. 

passes  the  individual  interest  of  the  grantor.1  The  quantity  of 
estate  or  interest  intended  to  be  conveyed  was  expressed  usually  in 
that  part  of  the  common-law  deed  or  feoffment  known  as  the  hdben- 
dum  •  thus,  "  to  have  and  to  hold  to  him  the  said  A.  and  his 
heirs  forever,"  etc.,  "  to  have  and  to  hold  for  and  during  the  term  of 
his  natural  life,"  etc.  This  clause  is  still  sometimes  found  in  modern 
deeds,  but  in  most  of  the  States  has  fallen  into  disuse.2  When 
employed  it  may  be  looked  to  for  the  purpose  of  determining  the 
true  construction  of  the  deed,  with  this  limitation,  however,  that  if 
it  be  inconsistent  with  or  repugnant  to  the  granting  clause  of  the 
deed,  the  latter  shall  prevail.3 

§  22.  Signing  and  sealing.  We  have  already  seen  that  a  deed 
without  a  signature  might  be  valid  at  common  law,  the  authenticity 
of  the  instrument  being  established  by  the  seal  of  the  grantor.4  But 
now  by  statute,  in  most  of  the  American  States,  the  signature  of  the 
grantor  is  an  indispensable  part  of  a  deed.  And  even  in  those  States 
in  which  there  has  been  no  statutory  change  of  the  common  law,  it 
is  apprehended  that  no  purchaser  would  be  compelled  to  accept  a 
conveyance  not  signed  by  the  grantor,  so  strongly  has  use  and  cus- 
tom impressed  upon  the  masses  the  necessity  of  that  act.  The  pur- 
chaser is  entitled  to  a  conveyance  authenticated  in  such  a  manner  as 
not  to  excite  distrust  and  doubt  in  the  minds  of  those  to  whom  he 
desires  to  sell.  In  some  of  the  States  sealing  remains,  as  at  common 
law,  an  indispensable  formality  in  the  execution  of  a  deed.  Origi- 
nally a  seal  consisted  of  an  impression  upon  wax  or  some  similar 
material,  adhering  to  the  surface  of  the  paper  or  parchment,  or  an 
impression  upon  a  waxen  disc  attached  to  the  paper  by  ribbons  or 
strings.  But  now,  in  perhaps  every  State  of  the  Union,  a  direct 
impression  upon  the  paper  itself,  or  a  simple  scroll,  is  by  statute 
.  made  sufficient  as  a  seal.5  And  the  public  have  become  so  accus- 
tomed to  their  use  that  the  ancient  mode  of  sealing,  if  resorted  to 

1  White  v.  Sayre,  2  Ohio,  110. 

» 3  Washb.  Real  Prop.  466  (642). 

•Flagg  v.  Eames,  40  Vt.  23;  94  Am.  Dec.  363;  Mayor  v.  Bulkley,  51  Mo.  227; 
4  Kent  Com.  468. 

4Shep.  Touchstone  (Preston's  ed.),  56;  3  Washb.  Real  Prop.  270;  Jeffery  T. 
Underwood,  1  Ark.  108. 

*  See,  generally,  upon  the  subject  of  seals,  3  Washb.  Real.  Prop.  271;  1  Devlin 
on  Deeds,  §  242. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   55 

in  any  case,  would  probably  be  unsatisfactory  to  the  purchaser. 
It  is  to  be  remembered  that  in  certain  of  the  States  a  scroll,  to  be 
sufficient  as  a  seal,  must  be  recognized  as  such  in  the  body  of  the 
instrument.  This  is  usually  the  office  of  the  testinwnium  clause  : 
"  In  testimony  whereof,  I  have  hereunto  set  my  hand  and  seal,"  or, 
"  Witness  the  following  signatures  and  seal,"  or  other  similar  phrase 
immediately  preceding  the  signature.  If  not  so  recognized,  the 
scroll  will  be  disregarded  and  the  paper  held  to  be  unsealed  and  inop- 
erative as  a  deed.1  But  an  exception  to  this  rule  exists  in  those 
cases  in  which  the  instrument  acknowledged  is  such  as  is  by  statute 
required  to  be  under  seal,  e.  g.,  a  deed.  In  such  a  case  the  acknowl- 
edgment of  the  instrument  as  a  deed  supplies  the  failure  of  the 
grantor  to  recognize  the  seal  in  the  body  of  the  instrument.2  The 
purchaser  should  see  that  there  are  as  many  scrolls  or  seals  as  there 
are  signatures  to  the  instrument.  It  has  been  held  that  several 
grantors  or  signers  may  adopt  the  seal  of  one  of  their  number  as 
the  seal  of  all,8  but  to  remove  any  doubt  or  difficulty  upon  that 
point,  it  is  better  that  a  scroll  be  attached  to  each  of  the  signatures. 

§  23.  Attestation  or  acknowledgment.  If  by  the  law  of  the 
place  where  the  granted  premises  lie  deeds  are  required  to  be  exe- 
cuted or  acknowledged  before  subscribing  witnesses,  either  as  a 
mere  authentication  for  registry  or  as  a  necessary  part  of  the  execu- 
tion of  the  instrument,  the  purchaser  should  see  that  the  requirement 
has  been  precisely  fulfilled.  He  should  also  see  that  the  witness  is 
competent,  being  neither  the  husband  or  wife  of  a  party  in  interest,4 
nor  a  party  in  interest  himself,  nor  otherwise  disqualified  to  testify. 

The  ordinary  mode  in  which  deeds  are  authenticated  for  record  is 
by  acknowledgment  before  certain  designated  officers,  who  attach  a 
certificate  of  acknowledgment  to  the  deed.  In  a  few  of  the  States 
this  acknowledgment  is  an  essential  element  in  the  execution  of  the 
deed,  but  in  most  of  the  States  the  only  object  of  the  acknowledg- 
ment is  to  furnish  the  recording  officer  with  proof  that  the  deed  is 

1  Clegg  v.  Lemessurier,  15  Grat.  (Va.)  108;  Jenkins  v.  Hunt,  2  Rand.  (Va.)  446. 

'Cosner  v.  McCrum,  (W.  Va.)  21  S.  E.  Rep.  739;  Ashwell  v.  Ayres,  4  Grat. 
(Va.)  283. 

»Townsend  v.  Hubbard,  4  Hill  (N.  Y.),  351;  Burnett  v.  McCluey,  78  Mo.  676; 
Lambden  v.  Sharp,  9  Humph.  (Tenn.)224. 

4  Corbett  v.  Norcross,  35  N.  H.  99. 


56  MARKETABLE    TITLE    TO   KEAL   ESTATE. 

genuine,  while  as  between  the  parties,  except  where  one  of  the 
grantors  is  a  married  woman,  the  deed  is  valid  without  the  acknowl- 
edgment. The  laws  of  nearly  every  State  in  the  Union  provide  that 
the  deed  of  a  married  woman  shall  not  be  valid  unless  she  acknowl- 
edges it,  and,  after  the  deed  has  been  explained  to  her  privily  and 
apart  from  her  husband,  declares  that  she  had  willingly  executed  it 
and  wished  not  to  retract  it.  But  while,  as  a  general  rule,  deeds 
are  valid  as  between  the  parties  without  acknowledgment,  that 
formality  is  of  vital  importance  to  the  purchaser.  For  unless  the 
acknowledgment  be  duly  taken  and  all  the  requirements  of  the  law 
in  respect  to  the  certificate  be  complied  with,  the  deed,  though 
admitted  to  record,  will  not  be  notice  to  subsequent  purchasers  and 
creditors  of  the  grantor,  who  might,  in  consequence,  deprive  the 
purchaser  of  the  estate.  Besides,  a  defective  certificate  of  acknowl- 
edgment is  regarded  as  a  defect  in  the  purchaser's  title,  and  should 
he  afterwards  sell  the  estate,  would  justify  the  vendee  in  refusing 
to  accept  the  title.  For  this  latter  reason  alone  it  is  important  that 
the  purchaser  should  exact  a  literal  compliance  with  every  provision 
of  law  relating  to  acknowledgment  and  to  the  certificate.  There 
has  been  no  more  prolific  source  of  objections  to  title  than  irregular 
or  informal  certificates  of  acknowledgment.  The  eye  of  the  marti- 
net instantly  detects  a  slight  departure  from  statutory  forms,  and 
large  transactions  in  real  property  are  sometimes  suspended,  or  even 
abandoned,  on  account  of  real  or  supposed  difficulties  thus  sug- 
gested. It,  therefore,  behooves  the  purchaser  to  subject  the  deed 
which  he  receives  to  the  closest  scrutiny,  in  order  that  the  certifi- 
cate of  acknowledgment  shall  afford  no  ground  for  captious  objec- 
tions to  his  title  in  the  future.  He  should  insist  upon  a  rigid  and 
literal  adherence  to  the  prescribed  forms,  no  matter  how  trivial  and 
unimportant  the  departures  may  seem.  It  is  proposed  now  to 
invite  attention  to  the  essential  parts  of  a  certificate  of  acknowledg- 
ment, and  for  that  purpose  a  form  such  as  in  general  use  is  added 
here.  Like  the  Statute  of  Frauds,  every  clause  and  every  important 
word  in  it  has  been  the  subject  of  repeated  adjudications. 


V  to-wit(d)  : 


STATE  OF  — 
County  of  — 

I,  William  Smith,  a  notary  public  in  and  for  the  county  and  State 
aforesaid(J),  do  certify  that A.  B.(c) whose  name  is 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOB.   57 

signed  to  the  foregoing  writing(<2),  bearing  date  on  the  —  day  of 
, ,  personally  appeared  before  me  in  the  county  afore- 
said^), the  said  A.  B.  being  well  known  to  me  to  be  the  person  who 
executed  the  said  writing(y),  and  acknowledged  the  same  to  be  his 
act(^).  And  I  further  certify  that  C.  B.,  wife  of  the  said  A.  B., 
whose  names  are  signed  to  said  writing  bearing  date  as  aforesaid, 
the  said  C.  B.  being  well  known  to  me  as  one  of  the  persons  who 
executed  said  writing,  and  being  by  me  examined  privily  and  apart 
from  her  husband(A),  and  having  the  writing  aforesaid  fully  explained 
to  her(*),  she,  the  said  C.  B.,  acknowledged  the  same  to  be  her  act 
and  deed,  and  declared  that  she  had  willingly  executed  thesame(yfc), 
and  wished  not  to  retract  it(£).  Given  under  my  hand  and  seal(m), 
this  —  day  of(?i)  -  — . 

WILLIAM  SMITH(o),  N.  P.(p]     |>EAL](?). 

§  24.  (a)  Venue  of  certificate.  Regularly,  a  certificate  of 
acknowledgment  should  state  in  the  caption  or  margin,  as  in  the 
foregoing  form,  the  name  of  the  State  and  of  the  city  or  county 
for  which  the  officer  was  appointed,  and  in  which  the  acknowledg- 
ment was  taken.  This  is  called  the  "  venue  "  of  the  certificate,  but 
its  absence  from  the  paper  will  not  be  fatal  if  it  otherwise  suffi- 
ciently appears  from  the  body  of  the  certificate  or  from  the  deed 
itself  read  in  connection  with  the  certificate  where  the  acknowledg- 
ment was  taken.1  But  if  the  place  of  acknowledgment  cannot  be 
determined  from  any  of  these  sources,  the  certificate  will  be 
rejected.2  The  purchaser  should  avoid  all  difficulty  upon  this  point 
by  insisting  that  the  paper  tendered  shall  literally  follow  the  pre- 
scribed form. 

§  25.  (b)  Name,  official  designation,  and  authority  of  officer. 
The  name  of  the  certifying  officer  should  appear  in  the  body  of  the 
certificate.  But  this,  it  is  apprehended,  is  not  indispensable  if  the 
certificate  be  duly  signed  by  the  officer.  If  the  statute  provides 
that  the  acknowledgment  shall  be  made  before  two  officers  instead 

1  Graham  v.  Anderson,  42  111.  514;  92  Am.  Dec.  89;  Dunlap  v.  Dougherty,  20 
HI.  397;  Fuhrman  v.  Loudon,  13  Serg.  &  R.  (Pa.)  386;  15  Am.  Dec.  608;  Brooks 
T.  Chaplin,  3  Vt.  281;  23  Am.  Dec.  209. 

» Vance  v.  Schuyler,  1  Gilm.  (111.)  160;  Haidin  v.  Kirk,  49  111.  153;  95  Am. 
Dec.  581. 

8 


58  MARKETABLE    TITLE    TO   HEAL   ESTATE. 

of  one,  the  names  of  both  should  be  set  out  in  the  certificate.1 
The  purchaser,  of  course,  whether  as  grantee  in  his  own  right  or  in 
a  representative  capacity,2  should  not  take  the  acknowledgment  of 
the  grantor.  The  court  will  reject  a  certificate  by  an  interested 
party.3  The  fact  that  an  officer  taking  an  acknowledgment  is 
related  to  one  of  the  parties  does  not  bring  him  within  this  rule.* 
One  who  owns  an  interest  in  a  tract  of  laud  is  not  thereby 
prevented  from  taking  an  acknowledgment  of  a  deed  con- 
veying the  interest  of  another  person  in  the  same  land.5 
If,  by  statute,  a  recital  in  the  body  of  the  certificate  showing  the 
official  character  of  the  person  taking  the  acknowledgment  is  made 
necessary,  and  there  be  no  such  recital  and  no  addition  of  the  official 
character  after  the  signature  of  the  officer,  the  certificate  will  be  insuf- 
ficient.6 In  the  absence  of  any  statutory  provision  upon  the  subject,  it 
is  not  absolutely  necessary  to  recite  the  official  character  in  the  certifi- 
cate.7 If  the  statute  requires  that  the  certificate  shall  show  that  the 
officer  is  one  of  those  authorized  by  law  to  take  acknowledgments, 
evidence  aliunde  will  not  be  received  to  supply  a  defect  in  that  par- 
ticular ;  otherwise,  if  the  statute  does  not  so  require.8  A  variance 
between  the  recital  of  official  character  in  the  body  of  the  certifi- 
cate, and  that  appended  to  the  signature  of  the  officer,  is  not 

1  Ridgely  v.  Howard,  3  Harr.  &  McH.  (Md.)  321. 

s  Beaman  v.  Whitney,  20  Me.  413;  Brown  v.  Moore,  38  Tex.  645,  trustee; 
Black  v.  Gregg,  58  Mo.  565,  trustee;  Stevens  v.  Hampton,  46  Mo.  404;  Dail  T. 
Moore,  51  Mo.  589;  Clinch  River  Veneer  Co.  v.  Kurth,  90  Va.  737,  a  case  in 
which  the  trustee  in  a  deed  took  an  acknowledgment  thereof. 

1  Withers  v.  Baird,  7  Watts  (Pa.),  227;  32  Am.  Dec.  754;  Groesbeck  v.  Seeley, 
13  Mich.  329;  Davis  v.  Beazley,  75  Va.  491;  Clinch  River  Veneer  Co.  v.  Kurth, 
(Va.)  19  8.  E.  Rep.  878;  Wilson  v.  Traer,  20  Iowa,  231.  Compare  Kimball  v. 
Johnson,  14  Wis.  674. 

4  Lynch  v.  Livingston,  6  N.  Y.  422. 

•  Dussaume  v.  Burnett,  5  Iowa,  95;  Long  v.  Crews,  113  N.  C.  256;  18  8.  E. 
Rep.  499,  when  the  officer  was  a  preferred  creditor  in  the  deed;  so,  also,  in  Baxter 
v.  Howell,  (Tex.  Civ.  App.)  26  8.  W.  Rep.  453.  Acknowledgment  of  a  clerk  is 
not  invalid  because  taken  by  his  deputy.  Piland  v.  Taylor,  113  N.  C.  1;  18  8. 
E.  Rep.  70. 

8  Johnston  v.  Haines,  2  Ohio,  55;  15  Am.  Dec.  538.  See,  also,  Van  Ness  r. 
Bank,  13  Pet.  (U.  8.)  17. 

i  Russ  v.  Wingate,  30  Miss.  440;  Shultz  v.  Moore,  1  McLean  (U.  S.),  520. 

•Van  Ness  v.  Bank,  13  Pet.  (U.  S.)  17;  Scott  v.  Gallagher.  11  Serg.  &  R,  (Pa.) 
347;  16  Am.  Dec.  508. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   59 

material.1  And  a  variance  between  the  statutory  description  of  the 
officer  and  that  contained  in  the  certificate  is  immaterial.2  The  pur- 
chaser should  be  careful  to  see  that  the  certifying  officer  is  one  of 
the  class  authorized  by  statute  to  take  acknowledgments.  A  certifi- 
cate by  an  officer  not  named  in  the  statute  will  be  insufficient.3  It 
is  not  necessary  that  an  officer  shall  certify  that  he  was  authorized 
to  take  acknowledgments ;  the  fact  that  he  describes  himself  as  a 
particular  officer  is  sufficient,  and  his  authority  may  be  shown 
aliunde*  If  the  competency  and  authority  of  the  certifying  officer 
be  unknown  to  the  purchaser,  he  should  insist  upon  evidence  of  those 
particulars,  which,  when  supplied,  usually  consists  of  a  certificate  of 
the  judge  or  clerk  of  the  court  in  which  the  officer  qualified,  setting 
forth  the  fact  of  such  qualification,  and  the  vitality  of  the  officer's 
commission.5  It  is  customary  also  for  the  certifying  officer  to 
append  to  his  certificate  a  statement  of  the  time  when  his  commis- 
sion will  expire. 

But  while  a  purchaser  would  doubtless  be  justified  in  declining  to 
accept  a  deed  which  had  been  acknowledged  before  an  officer  whose 
commission  had  expired,  or  before  one  who  had  usurped  the  office, 
by  virtue  of  which  he  acted,  it  seems  that  the  certificate  would  in 
neither  case  be  held  invalid,  if  the  person  making  it  assumed  to  act 
in  an  official  capacity,  and  had  color  of  title  to  the  office  in  ques- 

1  Merchants'  Bank  v.  Harrison,  39  Mo.  433;  93  Am.  Dec.  285,  semble. 

'May  v.  McKeenon,  6  Humph.  (Tenn.)  207;  Welles  v.  Cole,  6  Grat.  (Va.)'645. 

*Dundy  v.  Chambers,  23  111.  369  (312).  Here  the  statute  authorized  an 
acknowledgment  before  mayors  of  cities.  '  It  was  held  that  an  acknowledgment 
before  a  mayor  of  a  town  was  invalid.  Kimball  v.  Semple,  10  Cal.  441.  See,  also, 
Wright  v.  Wells,  12  N.  J.  L.  131;  Uhlerv.  Hutchinson,  23  Pa.  St.  110.  In  North 
Carolina  it  has  been  held  that  the  authority  of  commissioners  appointed  by  the  State 
government  to  take  acknowledgments  to  deeds  is  confined  to  deeds  made  by  non- 
residents of  the  State.  De  Courcey  v.  Barr,  1  Busb.  Eq.  (N.  C.)  181.  A  judge  of  the 
United  States  court,  authorized  to  take  an  acknowledgment,  may  take  it  anywhere 
in  his  jurisdiction.  Moore  v.  Vance,  1  Ohio,  14.  A  statute  authorizing  the 
appointment  of  commissioners  of  deeds  in  the  cities  of  the  State  does  not  extend 
to  cities  incorporated  after  the  act  took  effect.  Parker  v.  Baker,  1  Clark  (N.  Y.), 
223. 

4  Livingston  v.  McDonald,  9  Ohio,  168. 

'  It  must  appear  from  the  certificate  of  the  judge  that  the  officer  taking  the 
acknowledgment  was  qualified  to  act  as  such  at  the  time  the  acknowledgment  was 
taken.  Phillips  v.  People,  11  HI.  App.  340.  As  to  doubts  about  the  title  arising 
from  these  particulars,  see  post,  ch.  31,  §  300. 


60 


MARKETABLE    TITLE    TO    REAL   ESTATE. 


tion.1  In  such  a  case  the  act  of  a  de  facto  officer  cannot  be 
questioned  in  a  collateral  proceeding. 

"Where  a  certifying  officer  has  power  to  appoint  a  deputy,  an 
acknowledgment  taken  and  certified  by  such  deputy  will  be  suffi- 
cient.2 The  better  practice  is  that  the  certificate  shall  read  as  if 
the  acknowledgment  had  been  taken  before  the  principal  himself, 
and  be  subscribed  with  his  name,  by  "A.  B.,  Deputy,"  etc.*  But 
a  certificate  by  the  deputy  in  which  the  name  of  the  principal 
nowhere  appeared  has  been  held  valid.4  The  body  of  the  certifi- 
cate should  show,  either  by  express  recital  or  by  reference  to  the 
caption  or  the  margin  of  the  certificate,  the  State,  county,  city  or 
other  municipality  in  which,  and  as  an  officer  of  which,  the  person 
signing  the  certificate  professes  to  act.  If  this  cannot  be  collected 
from  the  whole  instrument,  read  in  connection  with  the  deed,  the 
certificate  will  be  rejected.5 

§  26  (c)  Name  of  grantor.  The  name  of  the  grantor  or  person 
acknowledging  the  deed  must  be  stated  in  the  recital  of  acknowl- 
edgment in  the  certificate,  and  if  not  so  stated,  the  certificate  will 
be  worthless,'  unless  he  be  so  described  therein  that  he  may  be 
identified  as  the  person  who  signed  the  deed.7  The  purchaser 
should  avoid  any  future  question  or  doubt  which  may  arise  from 
this  source  by  insisting  that  the  name  of  the  grantor  recited  in  the 
certificate  shall  correspond  precisely  with  the  name  signed  to  the 
deed.8  But  where  a  deed  has  been  acknowledged  in  open  court,  a 

1  Brown  v.  Lunt.  37  Me.  423;  Prescott  v.  Hayes,  42  N.  H.  56;  Crutchfield  v. 
Hewett,  2  App.  Cas.  (D.  C.)  373. 

'Mullerv.  Boggs,  25  Cal.  175;  Rose  v.  Neuman,  26  Tex.  131;  80  Am.  Dec. 
646;  Kemp  v.  Porter,  7  Ala.  138. 

1  Talbot  v.  Hooser,  12  Bush  (Ky.),  408;  McCraven  v.  McGuire,  23  Miss.  100. 

4  Beaumont  v.  Yeatman,  8  Humph.  (Tenn.)  542. 

•Vance  v.  Schuyler,  1  Gilm.  (111.)  160. 

« Smith  v.  Hunt,  13  Ohio,  260;  42  Am.  Dec.  201;  Hiss  v.  McCabe,  45  Md.  84; 
Hayden  v.  Westcott,  11  Conn.  129. 

*  Sanford  v.  Bulkley,  30  Conn.  344,  where  the  person  acknowledging  the 
deed  was  referred  to  in  the  certificate  as  ' '  Signer  and  sealer  of  the  foregoing 
instrument."  Wise  v.  Postlewait,  3  W.  Va.  452. 

8  The  danger  of  inattention  to  this  feature  of  the  certificate  is  illustrated  by 
the  case  of  Boothroyd  v.  Engles,  23  Mich.  19.  There  the  deed  was  signed  by 
Harmon  Sherman,  but  the  certificate  recited  an  acknowledgment  by  Hiram  Sher- 
man, and  this  the  court  held  insufficient  as  proof  of  execution  and  acknowledg- 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   61 

certificate  of  that  fact  which  fails  to  state  by  whom  the  deed  was 
acknowledged  is,  nevertheless,  sufficient,  it  being  presumed  that  the 
acknowledgment  was  by  the  grantor.1 

If  the  deed  be  that  of  a  corporation,  the  proper  person  to  acknowl- 
edge it  is  the  officer  who  affixed  the  corporate  seal.2  If  the  deed 
be  signed  by  two  or  more  officers  of  the  corporation,  an  acknowl- 
edgment by  one  of  them  will  suffice.8  The  instrument  should  be 
acknowledged  to  be  the  act  and  deed  of  the  corporation,  and  not  of 
the  subscribing  officer.4 

It  is  the  better  practice  that  the  official  or  representative  capacity 
of  a  party  acknowledging  a  deed,  such  as  a  sheriff,  trustee,  commis- 
sioner, etc.,  be  stated  in  the  certificate,  but  this  is  not  essential,  and 
a  mere  description  of  the  grantor  by  his  name  will  be  sufficient.5 
An  authority  to  execute  a  deed  of  trust  as  attorney  gives  the  power 
by  implication  to  acknowledge  it  for  registration.6  It  seems  that  a 
grantor,  executing  a  deed  in  his  own  proper  person,  may  acknowl- 
edge it  through  an  attorney  in  fact.7  A  certificate  that  "A. 
duly  acknowledged  to  me  that  he  subscribed  the  name  of  B. 
to  said  deed  as  principal  and  his  own  name  as  attorney  in  fact,"  is 
sufficient.8 

§  27.  (d)  Annexation  of  deed  and  reference  thereto.  In  some 
of  the  States  a  certificate  of  acknowledgment  is  by  statute  required 
to  be  written  or  printed  upon  the  same  paper  on  which  the  deed  is 
drawn.  Under  such  a  statute  it  has  been  held  that  a  certificate 

ment  of  the  deed  by  Harmon  Sherman.  A  deed  was  signed  "F.  M.  McKinzie," 
and  the  certificate  stated  an  acknowledgment  by  "  F.  M.  McKezie."  Held,  insuf- 
ficient. McKinzie  v.  Stafford,  (Tex.)  27  S.  W.  Rep.  790.  But  see  Chandler  v. 
Spear,  22  Vt.  388,  where  it  was  held  that  an  incorrect  recital  of  the  grantor's 
name  in  the  certificate  was  not  fatal,  if  it  appeared  with  reasonable  certainty  from 
the  whole  instrument  that  it  was  in  facb  acknowledged  by  him. 

1  Phillips  v.  Ruble,  Litt.  Sel.  Cas.  (Ky.)  221. 

'Kelly  v.  Calhoun,  95  U.  S.  710;  Lovett  v.  Saw  Mill  Assn.,  6  Paige  (N. 
Y.),  54. 

» Merrill  v.  Montgomery,  25  Mich.  73. 

4McDaniels  v.  Flower  Brook  Mfg.  Co.,  22  Vt.  274.  But  see  Tenney  v.  East 
Warren,  etc.,  Co.,  43  N.  H.  343. 

'Dail  v.  Moore,  51  Mo.  589;  Robinson  v.  Mauldin,  11  Ala.  977. 

6  Robinson  v.  Mauldin,  11  Ala.  977. 

T  Elliott  v.  Osborn,  1  Harr.  &  McH.  (Md.)  146. 

•Richmond  v.  Voorhees,  10  Wash.  316;  38  Pac.  Rep.  1014. 


62  MARKETABLE    TITLE    TO    REAL    ESTATK. 

written  upon  a  separate  piece  of  paper,  but  firmly  attached  to  the 
deed,  was  not  in  compliance  with  the  law  and  was  insufficient,1  a 
decision  that  savors  somewhat  of  excessive  refinement.  Ordinarily, 
it  suffices  to  attach  the  certificate  to  the  deed  with  mucilage  or  other 
adhesive  substances.  And,  in  the  absence  of  any  statutory  provision 
bearing  upon  the  point,  it  is  apprehended  that  the  certificate  would 
not  be  open  to  objection  even  if  it  were  detachable  from  the  deed. 
The  fact  that  the  certificate  of  acknowledgment  refers  to  the  deed 
to  which  it  is  attached  as  the  "  foregoing  mortgage,"  the  same  not 
being  a  mortgage,  is  immaterial.2 

§  28.  (e)  Jurisdiction  of  officer.  The  rule  that  an  officer  has  no 
power  to  take  an  acknowledgment  without  the  limits  of  the  county, 
city  or  other  municipality  in  and  for  which  he  was  appointed,  pre- 
vails, it  is  believed,  in  most  of  the  States.8  It  has  been  held,  how- 
ever, that  if  the  certificate  does  not  show  that  the  acknowledgment 
was  taken  within  the  jurisdiction  of  the  officer,  that  fact  will  be  pre- 
sumed,4 the  legal  presumption  being  in  favor  of  the  validity  of  the 
acts  of  public  officers,  where  nothing  to  the  contrary  appears.  But 
inasmuch  as  the  form  of  certificate  generally  prescribed  recites  the 
county  for  which  the  officer  was  appointed,  and  that  the  grantor  per- 
sonally appeared  before  the  officer  in  that  county,  and  acknowledged 
the  deed,  the  purchaser,  it  is  apprehended,  may  well  reject  a  cer- 
tificate which  does  not  contain  those  recitals.  Of  course,  the  officer 
may  always  take  an  acknowledgment  within  his  jurisdiction,  regard- 
less of  the  location  of  the  premises  conveyed.5 

§  29.  (f)  Personal  acquaintance  with  grantor.  The  recital  in 
the  certificate  that  the  party  acknowledging  the  deed  was  well  known 

1  Winkler  v.  Higgins,  9  Ohio  St.  599. 

J  Ives  v.  Kimball,  1  Mich.  308. 

•Long  v.  Crews,  118  N.  C.  256;  18  S.  E.  Rep.  499;  Dixon  v.  Bobbins,  114  N. 
C.  102;  Ferebee  v.  Hinton,  102  N.  C.  99;  8  S.  E.  Rep.  922.  The  jurisdiction  of 
the  officer  depends  upon  the  statute  which  confers  his  authority.  Thus,  when 
it  was  provided  that  an  acknowledgment  might  be  taken  by  "any  justice  in 
this  State,"  it  was  held  that  a  justice  might  take  an  acknowledgment  any  where 
in  the  State.  Learned  v.  Riley,  14  Allen  (Mass.),  109. 

4Sidwell  v.  Birney,  69  Mo.  144;  Thurman  v.  Cameron,  24  Wend.  (N.  Y.)  87. 
In  both  these  cases  the  venue  of  the  certificate  showed  the  State  and  county  in 
which  it  was  made.  Of  course,  it  does  not  necessarily  follow  that  the  acknowledg- 
ment was  taken  in  such  county.  Trulock  v.  Peeples,  1  Ga.  3. 

*  Johnson  v.  McGhee,  1  Ala.  168;  Colton  v.  Seavey,  22  Cal.  496. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   63 

to  the  officer,  or  that  his  identity  was  proved  to  the  officer  by  the 
oaths  of  credible  witnesses,  is  indispensable.1  Equivocal  phrases, 
such  as  that  the  officer  is  satisfied  as  to  the  identity  of  the  party,  will 
not  suffice.8  But  where  the  statute  provided  that  the  officer  should 
certify  that  he  was  "  personally  acquainted  with  "  the  grantor,  a  cer- 
tificate that  the  grantor  was  "  personally  known  "  to  the  officer  was 
held  sufficient.8  The  omission  of  the  word  "  known  "  in  the  clause 
"  personally  known  to  me "  will  be  fatal.4  But  it  has  been  held 
that  the  omission  of  the  word  "  personally  "  from  the  same  clause 
is  immaterial.5 

§  30.  (g)  Fact  of  acknowledgment.  The  recital  that  the  grantor 
appeared  before  the  certifying  officer  and  acknowledged  the  deed  is 
the  gist  of  the  whole  certificate.  The  word  "  acknowledged  "  is  not 
indispensable,'  but  unless  the  fact  of  acknowledgment  be  made  to 
appear  by  the  use  of  that  word  or  its  equivalents,  the  certificate  will 
be  fatally  defective.7  A  recital  that  the  grantor  made  oath  that 
he  signed,  sealed  and  delivered  the  deed  has  been  held  equivalent  to  a 
statement  that  he  acknowledged  the  deed.8  But  a  recital  that  the 
grantor  "  stated "  that  he  had  executed  the  deed  was  held  insuf- 

1  Fogarty  v.  Finlay,  10  Cal.  239;  70  Am.  Dec.  714;  Wolf  v.  Fogarty,  6  Cal. 
224;  65  Am.  Dec.  509;  Gove  v.  Gather,  23  111.  634  (585);  76  Am.  Dec.  711;  Fryer 
v.  Rockefeller,  63  N.  Y.  268.  This  was  a  case  which  arose  between  vendor  and 
purchaser.  The  purchaser  rejected  the  title  because  a  certificate  of  acknowl- 
edgment in  the  chain  of  title  did  not  show  personal  acquaintance  with  the 
grantor. 

'Klmball  v.  Simple,  25  Cal.  440;  Shepherd  v.  Carriel,  19  111.  313;  Short  v. 
Conlee,  28  111.  219. 

»  Kelly  v.  Calhoun,  95  U.  S.  710.  See,  also,  Sheldon  v.  Stryker,  42  Barb.  (N. 
Y.)  284;  Thurman  v.  Cameron,  24  Wend.  (N.  Y.)  87. 

4Tully  v.  Davis,  30  111.  103;  83  Am.  Dec.  179.  Even  though  the  omission  be 
apparently  inadvertent.  Wolf  v.  Fogarty,  6  Cal.  224;  65  Am.  Dec.  509;  Gould 
T.  Woodward,  4  Green  (Iowa),  82.  But  see  Rosenthal  v.  Griffin,  23  Iowa,  268. 

•Hopkins  v.  Delaney,  8  Cal.  85;  Welch  v.  Sullivan,  8  Cal.  511;  Alexander  v. 
Merry,  9  Mo.  514. 

•  Chouteau  v.  Allen,  70  Mo.  290.  Here  the  certificate  recited  that  the  grantor, 
being  duly  sworn,  "deposes  and  says,"  etc. 

1  Cabell  v.  Grubbs,  48  Mo.  353;  Short  v.  Conlee,  28  111.  219.  In  Bryan  v. 
Ramirez,  8  Cal.  461;  68  Am.  Dec.  340,  the  certificate  aecited  that  the  grantor  was 
known  to  the  officer  to  be  such,  but  did  not  show,  an  acknowledgment. 

'  Ingraham  v.  Grigg,  13  Sm.  &  M.  (Miss.)  22.  An  acknowledgment  that  he 
"signed,  sealed  and  delivered"  the  deed  is  also  equivalent  to  an  acknowl- 


64  MARKETABLE    TITLE    TO    REAL    ESTATE. 

ficient.1  It  seems  that  an  inadvertent  or  clerical  omission  of  the 
word  "  acknowledged  "  from  the  certificate  will  render  it  invalid.* 
And  where  a  statute  provides  that  the  grantor  shall  acknowledge 
the  instrument  to  be  his  "  voluntary  "  act  and  deed,  the  omission  of 
the  word  "voluntary,"  or  its  equivalent,  makes  the  certificate 
worthless.8 

§  31.  (A)  Privy  examination  of  wife.  A  certificate  of  acknowl- 
edgment of  a  deed  executed  by  a  married  woman  requires  the 
closest  scrutiny  of  the  purchaser.  The  formalities  prescribed  by 
statute  in  this  behalf  are  intended  to  supersede  the  ancient  common- 
law  mode  of  conveying  the  lands  of  a  married  woman  by  fine  and 
recovery.  They  are,  therefore,  necessary,  not  only  as  an  authenti- 
cation of  the  deed  for  record,  but  as  a  part  of  the  execution  of  the 
deed  itself,  without  which  it  would  be  invalid  between  the  parties, 
as  well  as  to  subsequent  purchasers  without  notice.4  For  this 
reason,  and  because  of  the  jealous  care  with  which  the  courts  guard 
the  rights  of  those  who  act  principally  under  the  direction  or  per- 
suasion of  others,  the  most  rigid  compliance  with  all  the  require- 
ments of  the  law  relating  to  the  acknowledgments  of  married  women 
has  been  exacted.  It  is,  therefore,  indispensable  that  the  certificate 
shall  show  that  the  woman  was  examined  by  the  officer  privily  and 
apart  from  her  husband.  But  it  is  not  necessary  that  these  precise 
words  shall  be  employed  in  the  certificate  if  others  of  the  same 
import  are  used.  Thus,  a  certificate  that  the  officer  took  "  the  pri- 
vate examination"  of  the  wife,  and  that  she  acknowledged  that 
"  she  executed  the  deed  without  any  compulsion  from  her  husband," 
was  held  sufficient.5  So,  where  the  language  was  "  after  a  private 
examination,  separate  and  apart  from  her  said  husband."'  And 
where  the  statute  required  that  the  woman  should  be  examined  "  out 
of  the  presence "  of  the  husband,  a  certificate  that  she  was  "  pri- 

edgment  that  he  executed  the  deed.  Jacoway  v.  Gault,  20  Ark.  190;  73  Am. 
Dec.  484. 

1  Dewey  v.  Carnpau,  4  Mich.  565.     This  was  a  great  refinement. 

*  Stanton  v.  Button,  2  Conn.  527. 

'Newman  v.  Samuels,  17  Iowa,  528;   Spitznaglc  T.  Van  Heasch,        Neb.  338. 
But  see  Henderson  v.  Gre^ell,  8  Cal.  581. 
'Barnett  v.  Shackleford,  6  J.  J.  Marsh.  (Ky.)  532;  22  Am.  Dec.  100. 

*  Skinner  v.  Fletcher,  1  Ired.  L.  (N.  C.)  313. 
« Kennedy  v.  Price,  57  Miss.  771. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   65 

vately  examined,  apart  from  and  out  of  the  hearing  of  her  husband," 
was  accepted.1  But  where  the  statute  required  that  the  officer 
should  examine  the  wife  "  separately  and  apart "  from  her  husband, 
a  certificate  that  she  had  been  examined  "apart"  from  him  was 
held  insufficient.2 

§  32.  (i]  Explanation  of  contents  of  deed.  The  recital  that  the 
officer  explained  to  the  woman  the  contents  of  the  deed  is  also  abso- 
lutely indispensable.8  The  intent  of  the  law  is  to  protect  her  from 
deception,  as  well  as  coercion,  in  the  execution  of  the  instrument. 
Where  a  statute  provided  that  the  officer  should  make  known  and 
explain  the  contents  of  the  deed  to  the  woman,  a  certificate  which 
set  forth  that  she  was  made  acquainted  with  the  contents  of  the 
deed,  but  did  not  state  that  they  were  explained  to  her,  was  deemed 
sufficient.4  So,  also,  where  the  certificate  recited  that  the  woman 
"  acknowledged  and  declared  that  she  was  well  acquainted  with  the 
contents  of  the  deed,v  3  a  decision  open  to  grave  doubt,  since  she 
may  have  been  falsely  advised  as  to  the  said  contents.  But  a  certifi- 
cate that  the  woman  "  declared  that  she  fully  understood  the  con- 
tents of  said  deed,"  without  stating  that  the  contents  were  explained 
to  her,  is  invalid.6 

We  have  aiready  seen  that  a  recital  of  acknowledgment  in  the 
certificate,  or  what  amounts  to  such  a  recital,  is  necessary,  and  can- 
not be  supplied  by  intendment.7  Also,  that,  as  a  general  rule,  the 
deed  of  a  married  woman,  whetner  a  mere  relinquishment  of  her 
contingent  right  of  dower,  or  a  conveyance  of  her  separate  estate, 

1  Deery  v.  Cray,  5  Wall.  (U.  8.)  795.  So,  also,  where  the  statute  provided  that 
the  officer  "shall  examine  her  privately,  out  of  the  hearing  of  her  husband,"  and 
the  certificate  was  "being  by  us  privately  examined,"  omitting  the  words  "out 
of  the  hearing  of  her  husband."  Webster  v.  Hall,  2  Hair.  &  McH.  (Md.)  19;  1 
Am.  Dec.  870. 

•Dewey  v.  Campau,  4  Mich.  565.  But  see  the  remarks  of  MILLRR,  J.,  in 
Deery  v.  Cray,  6  Wall.  (U.  8.)  795,  to  the  effect  that  "separate"  and  "apart,"  M 
used  in  the  form,  are  synonymous  terms. 

•Houston  v.  Randolph,  12  Leigh  (Va.,,  445;  Boiling  v.  Teel,  76  Va.  498. 

4Chauvln  T.  Wagner,  18  Mo.  541,  a  doubtfu.  decision. 

•Thomas  v.  Meier,  18  Mo.  578. 

•Langton  v.  Marshall,  59  Tex.  296;  Runge  v.  Sabin,  (Tex.)  30  8.  W.  Rep. 
568. 

'Ante,  §  30. 

9 


66  MARKETABLE    TITLE    TO    BEAL   ESTATE. 

is  void  as  between  the  parties,  unless  acknowledged  and  certified  in. 
strict  conformity  with  the  requirements  of  the  law.1 

§  33.  (fc)  Voluntary  act  of  wife.  Another  indispensable  requisite 
of  the  certificate  is  that  it  shall  contain  a  recital,  either  in  terms  or 
in  substance,  that  the  woman  declared  that  she  had  signed,  sealed 
and  delivered  the  deed  willingly.  An  officer  should  never  undertake 
to  draw  the  certificate  unless  he  has  the  statutory  form  before  him. 
If  he  relies  upon  his  memory  he  is  apt  to  use  expressions  deemed  by 
him  the  equivalent  of  those  contained  in  the  statute,  or  to  omit  words 
which  appear  to  him  immaterial.  A  vast  number  of  cases  are  to  be 
found  in  the  reports  in  which  the  courts  have  been  called  upon 
to  decide  the  correctness  of  his  judgment  in  these  particulars. 
Expressions  which  the  courts  in  one  State  have  deemed  sufficient 
substitutes  for  the  language  of  the  statute  above  quoted,  have  been 
rejected  in  others.2  A  certificate  of  acknowledgment  by  a  married 
woman  which  departs  from  the  statutory  form,  may  always  be  relied 
upon  to  create  such  a  reasonable  doubt  concerning  the  title  as  would 
justify  a  purchaser  from  the  grantee  in  refusing  to  complete  the 
contract,  for  there  is  no  rule  by  which  the  sufficiency  of  the  certifi- 
cate can  be  tested,  and  while  one  judge  might  deem  it  a  substantial 
compliance  with  the  law,  he  could  have  no  assurance  that  another 
judge,  if  the  title  should  be  afterwards  attacked,  in  ejectment  or 
otherwise,  would  not  entertain  a  contrary  opinion.  And  if  a  pur- 
chaser from  the  grantee  might  reject  the  title  as  unmarketable  upon 
this  ground,  a  fortiori  might  the  grantee  himself  reject  the  convey- 
ance until  a  certificate  free  from  doubt  should  be  tendered.  All 
possibility  of  doubt  or  question  as  to  the  validity  of  the  certificate 
should  be  removed  by  insisting  upon  a  strict  and  literal  conformity 
with  the  language  of  the  statutory  form  or  requirement.3 

1  Mason  v.  Brock,  12  111.  273;  52  Am.   Dec.  490;  Martin  v.  Dwelly,  6  Wend. 
(N.  Y.)  9;  21  Am.  Dec.  245. 

*  Clinch  River  Veneer  Co.  v.  Kurth,  90  Va.  737,  and  cases  cited  below. 

*  Gases  in  which  tlie  certificate  was  held  insufficient.     Where  the  statute  provided 
that  the  certificate  should  show  that  the  woman  acknowledged  that  she  had  not  been 
induced  to  execute  the  deed  through  "  ill-usage,"  and  the  certificate  was  that  she 
acknowledged  that  she  executed  the  deed  "of  her  own  free  will,  and  not  through 
any  threats  of  her  said  husband,  or  fear  of  his  displeasure."    Hawkins  v.  Burress, 
1  Harr.  &  J.  (Md.)  513.    Language  of  statute,  "signed,  sealed  and  delivered  the 
deed  as  her  voluntary  act  and  deed,  freely,  without  any  fear,  threats  or  compul- 
sion of  her  said  husband; "  language  of  certificate,  "  signed,  sealed  and  delivered 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   67 

§  34.  (Z)  Wish  not  to  retract.  If  the  statute  provides  that  the 
wife,  in  addition  to  acknowledging  the  deed,  shall  state  that  she  does 
not  wish  to  retract  it,  a  certificate  will  be  fatally  defective  if  it  does 
not  recite  that  fact.1  It  is  not  absolutely  necessary  that  the  certifi- 
cate shall  follow  the  precise  language  of  the  statute,3  and  the 
employment  of  a  wrong  word,  but  one  obviously  intended  for  that 
used  in  the  statute,  will  not  vitiate  the  instrument.8  But  inasmuch 

the  above  instrument  of  her  own  free  will  and  accord,  and  without  any  force,  per- 
suasion or  threats  from  her  said  husband."  Boykin  v.  Rain,  28  Ala.  332,-  65  Am. 
Dec.  349.  See,  also,  Alabama  Life  Ins.  &  Tr.  Co.  v.  Boykin,  38  Ala.  510.  Lan- 
guage of  statute,  "  freely,  voluntarily,  without  compulsion,  constraint  or  coercion 
by  her  husband;"  language  of  certificate,  "had  willingly  signed,  sealed  and 
delivered  the  same,  and  that  she  wished  not  to  retract  it."  Henderson  v.  Rice,  1 
Coldw.  (Tenn.)  223.  Language  of  statute,  "had  willingly  executed  the  same, 
and  does  not  wish  to  retract  it;  "  the  certificate  omitted  the  words  "had  willingly 
executed  the  same."  Leftwich  v.  Neal,  7  W.  Va.  569.  Language  of  statute, 
"voluntary  act  and  deed;"  language  of  certificate,  "of  her  own  free  will." 
Freeman  v.  Preston,  (Tex.)  20  8.  W.  Rep.  495. 

Cases  in  which  the  certificate  was  held  sufficient.  Where  the  statute  provided  that 
the  certificate  should  show  thnt  the  woman  acknowledged  the  deed  "  without 
undue  influence,"  and  the  certificate  was  that  she  acknowledged  "that  she  exe- 
cuted'the  same  freely  and  voluntarily  *  *  *  without  fear  or  compulsion." 
Goode  v.  Smith,  13  Cal.  81.  Language  of  statute,  "of  her  own  free  will 
*  *  *  without  undue  influence  or  compulsion  of  her  husband;"  language  of 
certificate,  "  without  undue  influence  or  compulsion  of  her  husband."  Tubbsv. 
Gatewood,  26  Ark.  128.  Language  of  statute,  "  voluntarily  and  of  her  own  free 
will  and  accord,  without  any  fear  or  coercion  of  her  husband;  "  language  of  cer- 
tificate, "acknowledged  the  above  indenture  to  be  (her)  voluntary  act  and  deed." 
Ruffner  v.  McLenan,  16  Ohio,  639.  Language  of  statute,  "signed,  sealed  and 
delivered  the  same  as  her  voluntary  act  and  deed,  freely,  without  any  fear, 
threats  or  compulsion  of  her  husband;"  language  of  certificate,  "that  she  signed, 
sealed  and  delivered  the  same,  freely  and  voluntarily,  and  without  any  threats  or 
compulsion  from  her  said  husband."  Den  v.  Geiger,  9  N.  J.  L.  225.  Language 
of  statute,  "as  her  voluntary  act  and  deed;"  language  of  certificate,  "freely 
and  of  her  own  accord."  Dundas  v.  Hitchcock,  12  How.  (U.  8.)  256.  Language 
of  statute,  "  that  she  had  freely  and  voluntarily  executed  the  same;"  language  of 
certificate,  "without  any  fear,  threats  or  compulsion."  Allen  v.  Denoir,  53 Miss. 
321.  Language  of  statute,  "  that  she  had  of  her  own  free  will  executed  the 
deed,  without  compulsion  or  undue  influence  of  her  husband;  "  language  of  cer- 
tificate, "  freely  and  of  her  own  consent,  but  not  by  the  persuasion  or  compulsion 
of  her  said  husband."  Little  v.  Dodge,  32  Ark.  453. 

'Grove  v.  Zumbro,  14  Grat.  (Va.)  501;  Churchill  v.  Moore,  1  R.  I.  209. 

*  Bateman's  Petition,  11  R.  I.  585,  588. 

'Belcher  v.  Weaver,  46  Tex.  293;  26  Am.  Rep.  267. 


68  MARKETABLE    TITLE    TO   REAL    ESTATE. 

as  variances  and  departures  from  the  statutory  form  excite  doubt 
and  distrust  in  the  minds  of  timid  buyers,  the  purchaser  should  insist 
that  the  precise  language  of  the  statute  be  used. 

§  35  (m)  Reference  to  seal.  The  laws  of  some  of  the  States 
require  that  the  certificate  of  acknowledgment  shall  be  authenticated 
by  the  seal  as  well  as  the  signature  of  the  certifying  officer.  There 
seems  to  be  some  conflict  of  opinion  in  these  States  as  to  whether  it  is 
necessary  that  the  officer  shall  acknowledge  or  recognize  the  seal, 
either  in  the  body  of  the  instrument  or  in  the  attestation  clause.1 
Without  pausing  to  consider  the  cases  either  way,  it  suffices  to  saj 
that  wherever  by  the  lex  rei  sites  a  seal  is  required,  the  safer  course 
is  for  the  purchaser  to  see  that  there  is  a  recognition  of  the  seal  by 
the  officer,  in  the  usual  form,  "  Given  under  my  hand  and  seal,"  etc. 

§  36.  (n)  Date  of  certificate.  It  is  customary,  and  the  better 
practice,  for  the  officer  to  insert  the  date  of  the  certificate  in  the 
attestation  clause.  But  a  date  is  not  indispensable  to  the  validity  of 
the  certificate,  unless  made  so  by  statute.2  And  the  fact  that  the 
certificate  bears  date  before  the  deed  itself  is  immaterial.3  Inas- 
much, however,  as  the  custom  of  dating  the  certificate  universally 
prevails,  and  the  absence  of  a  date  might  raise  a  doubt  in  the  mind 
of  a  timid  purchaser  respecting  the  title,4  the  grantee  would  prob- 
ably be  justified  in  rejecting  a  certificate  which  was  deficient  in  that 
particular. 

§  37.  (o)  Signature  of  officer.  It  is  absolutely  essential  that  the 
certificate  shall  be  signed  by  the  officer  by  whom  it  is  made.  The 
recital  of  the  name  of  the  officer  in  the  body  of  the  certificate  will 
not  suffice.8  The  certificate  is  often  printed  or  prepared  by  a  third 
person,  and  presented  to  the  officer  complete,  with  the  exception  of 
his  signature,  consequently  the  subscription  of  his  name  is  an 
important  step  in  the  authentication  of  the  paper.  But  even  thougk 
the  name  were  inserted  in  the  form  by  the  officer  himself,  or  the 
paper  were  wholly  in  his  handwriting,  the  omission  of  the  signature 

1  The  cases  may  be  seen  in  Mr.  Devlin's  work  on  Deeds,  §  491. 

»  Webb  v.  Iluff,  61  Tex.  677;  Irving  v.  Brownell,  11  El.  402. 

«Gest  v.  Flock,  2  N.  J.  Eq.  108. 

4  It  will  be  seen  hereafter  that  in  some  cases  it  has  been  held  that  a  purchaser 
may  reject  a  title  if  "unsatisfactory  "  to  him,  though  his  objections  to  the  title 
are  really  captious  and  untenable.  Post,  §  288. 

•  Carlisle  v.  Carlisle,  78  Ala.  542. 


SUFFICIENCY  OF  CONVEYANCE  TENDEBED  BY  THE  VENDOR.   69 

would  be  fatal,  the  actual  subscription  of  his  name  being  required 
as  a  promulgation  of  the  instrument.1  If  the  certificate  be  by  a 
deputy,  the  name  of  the  principal  should  be  subscribed  "  by  A.  B., 
deputy,"  etc.2 

§  38.  (p)  Abbreviation  "J.  P."  etc.  It  is  not  absolutely  neces- 
sary that  the  officer  shall  add  to  his  signature  his  official  designation, 
if  the  capacity  in  which  he  acts  elsewhere  appears  in  the  certifi- 
cate.3 We  have  already  seen  that,  as  a  general  rule,  his  official 
capacity  must  somewhere  appear,  either  from  the  body  of  the  cer- 
tificate or  from  the  attestation  clause,  as  the  instrument,  must,  on 
its  face,  appear  to  be  the  act  of  a  competent  person.  As  it  is  cus- 
tomary to  follow  the  signature  of  the  officer  with  his  official  title, 
the  purchaser  should  see  that  this  is  done  in  order  that  his  title  papers 
may  present  no  appearance  of  irregularity.  An  abbreviation  of  the 
official  title  in  common  use,  such  as  "  J.  P."  or  "  K.  P.,"  will  suffice.4 

§  39  (q)  Seal  of  officer.  Where  by  statute  it  is  provided  that  the 
certificate  shall  be  under  the  signature  and  seal  of  the  certifying 
officer,  the  omission  of  the  seal  will  be  fatal.5  This  formality,  how- 
ever is  not  required  in  all  the  States,  and  where  not  required  the 
absence  of  the  seal  is  immaterial.6  It  has  been  held  that  if  by  the 
law  of  a  State  in  which  an  acknowledgment  is  taken  a  seal  by  the  cer- 
tifying officer  is  unnecessary,  the  want  of  such  a  seal  will  be  no 
objection  to  the  title  in  another  State  in  which  the  land  lies.  In 

'Marston  v.  Bradshaw,  18  Mich.  81;  100  Am.  Dec.  152. 
8  McCraven  v.  McGuire,  23  Miss.  100. 

3  Brown  v.  Farrar,  3  Ohio,  140.     The  omission  of  the  letters  "N.  P."  after  the 
signature  of  a  notary  public  does  not  affect  the  validity  of  the  certificate.     Lake 
Brie  &  W.  R.  Co.  v.  Whitham,  155  HI.  514;  40  N.  E.  Rep.  1014. 

4  Final  v.  Backus,  18  Mich.  218;   Russ  v.  Wingate,  30  Miss.  440;    Rawley  v. 
Beman,  12  111.  198. 

8  Mason  v.  Brock,  12111.  278;  52  Am.  Dec.  490;  Hastings  v.  Vaughn,  5  Oal. 
315;  Booth  v.  Cook,  20  111.  129.  The  notary's  seal  must  appear,  when  his  certifi- 
cate declares  that  he  has  affixed  it;  otherwise  the  certificate  is  invalid.  Bullard 
v.  Perry,  28  Tex.  347.  An  abstract  of  title  contained  a  memorandum  of  a  cer- 
tificate of  acknowledgment  as  follows:  "Certif.  of  acknt.  by  notary  public  for 
said  county  is  signed  'B.  R.  Randall,  L.  8..  Notary  Public."'  Held,  that  the 
abstract  sufficiently  showed  a  certificate  under  official  seal.  Bucklen  v.  Hasterlik, 
155  111.  423;  40  N.  E.  Rep.  561. 

•Farnum  v.  Buffum,  4  Cush.  (Mass.)  260;  Baze  v.  Arper,  6  Minn.  220.  None 
is  required  in  Virginia;  the  court  takes  judicial  notice  of  the  acts  of  domestic 
notaries  public.  See,  also,  Powers  v.  Bryant,  7  Port.  (Ala.)  9. 


70  MARKETABLE    TITLE    TO   REAL   ESTATE. 

other  words,  that  the  validity  of  the  certificate  in  this  respect  is  to 
be  governed  by  the  law  of  the  place  where  the  acknowledgment  was 
taken.1  Where  by  statute  the  officer  is  required  to  have  a  seal,  it 
must  be  an  instrument  capable  of  making  a  durable  impression  upon 
paper  or  some  tenacious  material  attached  to  the  paper.2  If  the 
officer  be  one  who  is  not  required  by  statute  to  have  a  seal,  it  is 
apprehended  that  a  scroll  or  scrawl,  recognized  by  him  in  the  instru- 
ment as  a  seal,  will  suffice.  If  the  form  of  the  officer's  seal  be  pre- 
scribed by  statute,  it  must  of  course  conform  to  the  requirement. 
If  there  be  no  provision  upon  the  subject,  any  device  that  he  chooses 
to  adopt  will  suffice.  It  is  better,  of  course,  that  the  seal  should 
state  the  name  and  office  of  the  officer,  but  the  better  opinion  seems 
to  be  that  these  particulars  are  not  indispensable.1  The  fact  that 
the  seal  precedes  instead  of  follows  the  signature  of  the  officer  is 
immaterial.4 

§  40.  (r)  Surplusage,  clerical  mistakes.  If  a  certificate  of 
acknowledgment  is  in  all  other  respects  sufficient,  the  fact  that  it  con- 
tains statements  or  recitals  not  required  by  law  is  immaterial.  Mere 
surplusage  or  redundancy  leaves  the  certificate  unimpaired.*  If  the 
instrument  contains  all  that  the  law  requires,  the  fact  that  it  is  in 
the  form  of  a  jurat  is  of  no  consequence.6  Nor  will  an  obviously 
clerical  mistake,  such  as  the  substitution  of  a  word  which  does  not 
make  sense  for  the  one  used  in  the  statute,7  nor  the  omission  of  an 
immaterial  word,  especially  where  the  omission  is  a  plain  oversight 
or  inadvertence,  such  as  the  failure  to  insert  a  pronoun  in  a  blank 
left  for  the  purpose,8  make  the  certificate  worthless.  But  with 
respect  to  clerical  mistakes  and  omissions  there  has  been  much  ques- 

1  Bucklen  v.  Hasterlik,  155  111.  423;  41  N.  W.  Rep.  561. 

*  Mason  v.  Brock,  12  111.  273;  52  Am.  Dec.  490. 

•Mason  v.  Brock,  12  111.  278;  52  Am.  Dec.  490.     But  see  In  re  Neb«,  11  Nat. 
Bankruptcy  Reg.  289. 
'Gilchrist  v.  Dilday,  152  111.  207;  38  N.  E.  Rep.  572. 

*  Chester  v.  Rumsey,  26   111.  97;   Stuart  v.  Dutton,  39  111.  91;   Whitney  r. 
Arnold,  10  Cal.  531. 

*  Ingraham  v.  Grigg,  13  8m.  &  M.  (Miss.)  22. 

7  Calumet  &  Chicago  Canal  Co.  v.  Russell,  68  111.  426. 

8  Dickerson  v.  Davis,  12  Iowa,  353.     In  Spitznagle  v.  Van  Hessch,  13  Neb.  333, 
the  omission  of  the  words  "and  deed"  from  the  clause  "voluntary  act  and 
deed"  was  held  immaterial.     So,  also,  where  the  word  "deed"  was  inserted  and 
tbe  word  "act"  omitted.     Stuart  v.  Dutton,  39  111.  91.     The  omission  of  the 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDO'B.   71 

tion  and  doubt  as  to  what  of  them  are  and  what  are  not  material. 
The  omission  of  the  word  "  acknowledged," l  though  obviously 
inadvertent,  has  been  held  fatal  to  the  certificate,  and,  on  the  other 
hand,  the  absence  of  the  word  "  known "  from  the  clause  "  fully 
made  known  to  her,"2  has  been  held  a  mere  clerical  omission.  And 
in  other  cases  omissions  which  one  court  has  treated  as  immaterial 
have  been  by  other  courts  regarded  as  of  vital  importance.  Under 
these  circumstances  there  can  be  no  doubt  that  a  purchaser  would 
be  justified  in  refusing  to  accept  the  conveyance  if  the  certificate  of 
acknowledgment  attached  thereto  contained  either  clerical  errors  or 
inadvertent  omissions.  The  vendor  cannot  force  upon  him  a  deed 
which,  though  it  may  be  finally  adjudged  sufficient,  is  executed  or 
acknowledged  in  such  a  manner  as  to  cast  a  doubt  upon  the  title. 
Generally  the  statutes  of  the  different  States  prescribe  the  several 
elements  of  the  acknowledgment  and  the  duties  of  the  certifying 
officer,  and  give  a  form  in  which  the  certificate  may  be  made  by  the 
officer.  Where  this  is  done,  and  the  form  given  omits  some  phrase 
or  expression  used  in  the  statute,  the  form  governs,  and  a  certificate 
which  literally  follows  the  latter  will  be  sufficient.3  The  body  of 
the  deed  may  sometimes  be  referred  to  for  the  purpose  of  supplying 
omissions  from  the  certificate.4  Thus,  where  the  statute  required 
that  the  certificate  should  show  that  the  grantor  acknowledged  that 
he  signed,  sealed  and  delivered  the  deed  "  on  the  day  therein  men- 
tioned, and  the  certificate  contained  no  such  recital,  it  was  held  that 
the  omission  was  cured  by  reference  to  the  deed,  which  bore  the 
same  date  as  the  certificate.5 

words  ' '  for  the  consideration  and  purposes  therein  set  forth  "  is  fatal.  Jacoway 
T.  Gault,  20  Ark.  190;  83  Am.  Dec.  494.  A  certificate  that  the  grantors  acknowl- 
edged a  paper  "to  be  their  act  and  deed "  instead  of  following  the  statutory 
form,  that  they  "signed,  sealed  and  delivered,"  etc.,  is  sufficient.  Den  v.  Ham- 
ilton, 12  N.  J.  L.  109. 

1  Stanton  v.  Button,  2  Conn.  527. 

1  Hornbeck  v.  Building  Assn.,  88  Pa.  St.  64. 

*  Belcher  v.  Weaver,  46  Tex.  293;  26  Am.  Rep.  267.  Here  the  statute  pro- 
vided that  the  wife  should  acknowledge  that  she  did  "freely  and  willingly  sign," 
etc.,  while  the  form  was  that  "she  had  willingly  signed,"  etc.,  omitting  the  word 
"  freely."  The  court  held  that  the  word  fully  might  be  omitted  in  the  certificate, 
because  it  was  omitted  in  the  form. 

4  Bradford  v.  Dawson,  2  Ala.  203. 

1  Bradford  v.  Dawson,  2  Ala.  203;  Carter  v.  Chandron,  21  Ala.  72. 


72  MARKETABLE    TITLE    TO   REAL,    ESTATE. 

§  41.  («)  Amendment  of  the  certificate.  It  will  doubtless  occur 
to  the  reader  that  in  most  cases  objections  to  the  sufficiency  of  a  certifi- 
cate of  acknowledgment  are  capable  of  easy  removal  by  the  tender 
of  a  new  certificate.  It  may  be,  also,  that  before  the  deed  has  been 
delivered  by  the  grantor  the  officer  may  legally  amend  his  certifi- 
cate,1 though  it  has  been  held  in  some  cases  that  after  the  paper 
has  been  signed  and  delivered  by  the  latter  his  powers  over  it  have 
ceased,  and  that  he  cannot  fill  up  blanks,  add  to,  nor  change  the 
instrument  so  as  to  make  it  conform  to  the  law.2  That  he  may  not 
do  this  scarcely  admits  of  doubt  in  a  case  in  which  the  deed  has 
been  admitted  to  record.3  But  it  is  not  easy  to  perceive  any 
grounds  upon  which  an  amendment  of  the  certificate  made  by  the 
officer  at  the  request  of  the  grantor  before  the  deed  was  delivered 
and  accepted  could  be  deemed  insufficient  or  invalid,  since  the 
rights  of  no  third  person  would  be  thereby  affected,  and  such  a 
request  would  be  itself  substantially  a  reacknowledgment  of  the 
deed.  However  this  may  be,  the  better  course  for  the  purchaser  is 
to  insist  upon  a  reacknowledgment  of  the  deed.4  This,  in  most 
cases,  would  be  as  feasible  as  an  amendment  of  the  certificate,  and 
would  leave  no  pretext  for  an  objection  to  the  title  on  the  part  of 
future  purchasers.  It  is  hardly  necessary  to  say  that  the  acknowl- 
edgment of  a  deed  must  be  a  matter  of  record  and  cannot  be  proved 
by  parol  testimony.5  Nor  can  a  certificate  which  is  defective  in  a 
material  particular  be  cured  by  evidence  aliunde.*  Neither  is 
parol  evidence  admissible  to  contradict  a  certificate  of  acknowledg- 
ment in  a  collateral  proceeding.7  But  of  course  the  certificate  may 
be  attacked  in  a  direct  proceeding  on  the  ground  that  the  acknowl- 
edgment was  procured  by  duress  or  fraud.8  The  certificate  must 

'There  is  a  dictum  to  this  effect  in  Elliot  v.  Piersol..  1  Pet.  (U.  S.)  328. 

*  Wedelv.  Herman,  59  Cal.  507;  Merritt  v.  Yates,  71  111.  639;  23  Am.  Rep.  128. 
•Elliot  v.  Piersol,  1  Pet.  (U.  S.)  328;  Bours  v.  Zachariah,  11  Cal.   281;  70  Am. 

Dec.  779,  dictum,  the  deed  in  that  case  having  been  recorded  before  the  amend- 
ment was  made. 

4  In  Merritt  v.  Yates,  71  111.  636;  23  Am.  Rep.  128,  it  is  said  that  the  only  way 
in  which  the  defective  certificate  can  be  remedied  is  by  reacknowledgment. 

*  Pendleton  v.  Button,  3  Conn.  406;  Hayden  v.  Westcott,  11  Conn.  129. 
•O'Ferrall  v.  Simplot.  4  Iowa,  381. 

1  This  principle  is  recognized  by  statute  in  Kentucky.     Keith  v.  Silberbergr 
(Ky.)  29  S.  W.  Rep.  316. 
•Grider  v.  Land  Mortgage  Co.,  99  Ala.  281;  12  So.  Rep.  775. 


SUFFICIENCY  OF  CONVEYANCE  TENDERED  BY  THE  VENDOR.   73 

set  out  in  terms  or  in  substance  all  that  the  statute  requires.  An 
acknowledgment  certified  to  have  been  made  "  according  to  the  act 
of  the  assembly  in  that  case  made  and  provided  "  is  insufficient. l 

§  42.  Unauthorized  reservations  or  restrictions.  The  pur- 
chaser may  reject  a  conveyance  which  contains  reservations,  restric- 
tions or  conditions,  not  authorized  by  the  contract  under  which  the 
conveyance  was  drawn.2  Thus,  under  an  agreement  by  which  he  is 
to  receive  a  "  good  and  sufficient  warranty  deed,"  the  purchaser  may 
reject  a  deed  which  reserves  an  easement  in  the  land  to  a  third  per- 
son, though  he  knew  of  the  existence  of  the  easement  at  the  time 
the  contract  was  made.3 

The  conveyance  may  be  rejected  if  it  does  not  include  any  ease- 
ment or  servitude  to  which  the  purchaser  maybe  entitled  under  the 
contract  in  other  lands  of  the  vendor.4 

The  purchaser  is  not  bound  to  accept  a  deed  containing  erasures,5 
•or  one  containing  a  blank,  left  for  the  consideration  money.6 

A  purchaser  entitled  to  the  covenants  implied  from  the  use  of 
the  words  "  grant  and  convey,"  cannot  be  required  to  accept  a 
deed  in  which  the  grantor  limits  the  effect  of  those  covenants  by 
a  clause  that  he  warrants  the  title  "  against  the  lawful  claims  of 
all  persons  claiming  by,  through,  or  under  him,  but  no  other."7 

In  a  case  in  which  the  vendor  leased  the  premises  to  a  stranger 
after  the  sale,  and  the  purchaser,  by  the  terms  of  the  contract, 
was  entitled  to  a  warranty  deed,  it  was  held  that  he  might  reject 
a  deed  purporting  to  be  made  subject  to  the  lease,  or  describing 
the  property  as  "being  the  same  now  occupied  by"  the  lessee, 
since  those  clauses  might  possibly  be  construed  as  excepting  tho 
lease  from  the  operation  of  the  warranty.8 

§  43.  Waiver  of  objections.  The  purchaser  should  make  his 
objections  to  the  deed,  either  in  respect  to  form  or  substance,  when 

^lannagan  v.  Young,  2  Harr.  &  McH.   (Md.)   38. 

'Millinger  v.  Daly,  5>6  Pa.  St.  245.     See  3  Washb.  Real  Prop.  431   (639). 

"Morgan  v.  Smith,   11   111.  194. 

4  Wilson  v.  McNeal,   10  Watts   (Pa.),  422. 

•Markley  v.  Swartzlander,  8  W.  &  S.    (Pa.)    172. 

•Moore  v.  Beckham,  4  Binn.    (Pa.)    1. 

'Union  Mut.  Life  Ins.  Co.  v.  Crowl,   (Tex.  Civ.  App.)   67  S.  W.  901. 

•Bruner  v.  Diamond,  65  111.  App.  476. 

10 


74  MARKETABLE    TITLE    TO    BEAL,   ESTATE. 

tendered.  If  lie  fail  in  this  respect  it  has  been  held  that  he  thereby 
waives  all  objections.1  And  when  the  duty  devolves  upon  the  pur- 
chaser to  tender  a  deed  it  has  been  held  that  the  grantor  must  make 
his  objection  to  the  deed,  if  any,  within  a  reasonable  time.  He 
cannot  set  up  an  objection  to  the  deed  for  the  first  time  when 
sued  for  a  breach  of  contract  or  for  specific  performance.2  If  the 
purchaser  takes  possession  and  accepts  a  conveyance  as  satisfac- 
tory he  cannot  afterwards  object  that  it  is  insufficient.3  And  if  a 
deed  be  valid,  but  objectionable  to  the  purchaser  in  form,  he  must, 
if  he  have  an  opportunity  for  inspection,  make  his  objection  at 
the  time  of  the  tender,  or  it  will  be  waived.4  In  a  case  in  which 
the  purchaser  took  possession  under  a  deed  to  which  he  made  no 
objection,  and  afterwards  refused  to  return  the  deed,  it  was  held 
that  he  could  not  thereafter  abandon  the  contract  and  recover 
back  his  deposit.5  If  the  purchaser  makes  no  objection  to  the 
deed  when  tendered,  but  merely  says  that  he  is  unable  to  pay  the 
purchase  price,  he  will  be  held  to  have  waived  all  objection  to  the 
deed,  even  though  not  drawn  in  conformity  to  the  contract.6  In 
such  a  case  he  will  also  be  deemed  to  have  waived  any  objection 
to  specific  performance,  based  upon  the  existence  of  an  incum- 
brance  on  the  property  at  the  time  the  deed  was  tendered.7  If  he 
retains  the  deed  without  objection  to  its  sufficiency  he  cannot 
afterwards  defend  a  suit  for  the  purchase  money,  on  the  ground 
that  the  deed  was  not  properly  acknowledged.8 

1Moak  v.  Bryant,  51  Miss.  560;  Dresel  v.  Jordan,  104  Mass.  407;  Kenniston 
v.  Blakie,  121  Mass.  552;  Bigler  v.  Morgan,  77  N.  Y.  312;  Royal  v.  Dennison, 
109  Cal.  558;  42  Pac.  39;  Ellis  v.  Lockett,  100  Ga.  719;  28  S.  E.  452. 

'Morgan  v.  Stearns,  40  Cal.  434. 

'Grisvvold  v.  Brock,  43  111.  App.  203. 

4Stryker  v.  Vanderbilt,  25  N.  J.  L.  68. 

"  Kenniston  v.  Blakie,  121  Mass.  552. 

•Moak  v.   Bryant,  51  Miss.  560. 

TAshbaugh  v.  Murphy,  90  111.   182. 

'Morrison  v.  Faulkner,  (Tex.)  21  S.  W.  Rep.  984.  If  a  deed  is  defective  for 
want  of  a  seal  or  other  necessary  formality  it  will  be  reformed,  even  as  against 
a  purchaser  for  valuable  consideration,  if  he  had  notice  of  the  plaintiff's  rights. 
Mastin  v.  Halley,  61  Mo.  196 ;  Wadsworth  v.  Wendell,  5  Johns.  Ch.  (N.  Y.)  224. 


CHAPTER  V. 

CAVEAT  EMPTOR. 

GENERAL  OBSERVATIONS.     §  44. 

APPLICATION  OF  THE  TvrATmvr  TO  JUDICIAL  SALES. 

Inherent  defects  of  title.    §  45. 

Effect  of  confirmation  of  tJie  sale.     §  46. 
Exceptions  to  the  rule.     §  47. 

Fraud  as  it  affects  rights  of  purchasers  at  judicial  sales.    §  48. 
Errors  and  irregularities  in  the  proceedings.    Collateral  attack.    §  40. 
Want  of  jurisdiction.    §  50. 
Matters  occurring  after  jurisdiction  has  attached.    §  51. 

Fraud  a#  ground  for  collateral  attack.     §  52. 
SALES  BY  EXECUTORS  AND  ADMINISTRATORS. 
Sales  in  pursuance  of  testamentary  powers.     §  53. 
Sales  in  pursuance  of  judicial  license.    §  54. 
Fraud  on  the  part  of  personal  representative.     §  55. 
Want  of  jurisdiction.    Errors  and  irregularities.    §  56. 
SHERIFF'S  SALES. 

Want  of  title  in  execution  defendant. 
General  rules.     §  57. 
Exceptions.     §  58. 
Fraudulent  representation*.    §  59. 

Rights  of  purchase?- from  purchaser  under  execution.    §  80. 
Title  under  void  judgment.    §  61. 
Title  under  void  sale.    §  62. 
TAX  SALES.     §  63. 

SALES  BY  TRUSTEES,  ASSIGNEES,  ETC.    §  64. 

SUBROGATION   OF  PURCHASER   AT    JUDICIAL  AND   MINISTE- 
RIAL SALES. 
Where  the  sale  is  void.    §  65. 
Where  the  sale  is  valid.    §  66. 

§  44.  GENERAL  OBSERVATIONS.  The  maxim  caveat  emptor  (let 
the  buyer  beware),  as  it  respects  titles  to  land,  is  peculiar  to  the 
common  law.  It  is  unknown  to  the  civil  law.1  The  principal  appli- 
cations of  the  maxim  are :  (1)  In  the  denial  of  relief  to  a  purchaser 
of  lands  who  has  accepted  a  conveyance  of  a  defective  title  without 
covenants  of  indemnity  from  the  grantor ; 2  (2)  In  charging  a  pur- 
chaser with  laches  or  negligence  in  failing  to  avail  himself  of  means 

•Co.  Litt.  102a;  Brown  Leg.  Max.  768. 
1  Phillips  v.  Walsh,  66  N.  C.  283. 


76  MARKETABLE    TITLE    TO   REAL   ESTATE. 

for  ascertaining  the  validity  of  the  title ; l  (3)  To  designate  a  class  of 
cases  in  which  it  is  conclusively  presumed  that  the  purchaser  agreed 
to  take  just  such  title  as  the  vendor  had,  and  in  which  he  is  required 
to  pay  the  purchase  money,  though  the  title  which  he  is  to  receive 
will  be  utterly  worthless,  and  though  the  contract  still  remains 
executory.  As  a  consequence  of  this  doctrine,  in  the  latter  class  of 
cases  no  contract  on  the  part  of  the  vendor  that  his  title  is  good 
and  indefeasible  will  be  implied  from  the  mere  relations  of  the  par- 
ties, contrary,  as  we  have  seen,  to  the  general  rule  when  the  vendor 
contracts  in  his  own  right.  It  is  to  this  class  of  cases  that  our  atten- 
tion will  be  directed.  Of  the  two  first-mentioned  class  of  cases 
there  is  nothing  to  be  observed  here,  the  obligation  of  the  purchaser 
to  protect  himself  by  covenants  for  title,  or  by  searches  for  defects, 
being  elsewhere  considered  in  this  work. 

The  cases  to  which  the  rule  caveat  emptor  applies,  in  the  sense 
that  the  purchaser  will  be  deemed  to  have  entered  into  the  contract 
with  the  understanding  that  he  is  to  take  the  title,  such  as  it  is,  with- 
out an  express  contract  to  that  effect,  are  those  in  which  the  pur- 
chase was  made  at  (1)  judicial  sales ;  or  (2)  ministerial  or  fiduciary 
sales ;  that  is,  sales  by  executors,  administrators  or  other  personal 
representatives  under  judicial  license ;  sales  by  executors  and  admin- 
istrators under  powers  conferred  by  the  will ;  sales  by  trustees  and 
mortgagees ;  sales  by  tax  collectors,  and  generally  any  sale  in  which 
the  vendor  acts  not  in  his  own  right,  but  in  a  fiduciary  or  ministerial 
character,  and  from  whom  the  purchaser  has  no  right  to  require 
general  covenants  for  title. 

§  45.  APPLICATION  OF  THE  MAXIM  TO  JUDICIAL  SALES.— 
Inherent  defects  in  the  title.  A  judicial  sale  may  be  described  to  be 
a  sale  made  by  an  officer  of  a  court  of  justice  in  pursuance  of  an 
order  or  decree  of  such  court,  and  which  remains  incomplete  until 
ratified  or  confirmed  by  the  court.2  The  commissioner  or  other 
officer  making  the  sale  is  the  mere  agent  of  the  court  to  receive  and 
report  the  purchaser's  bid.8  Objections  to  the  title  by  a  purchaser 
at  a  judicial  sale  are  either  such  as  are  founded  upon  want  of 
jurisdiction,  or  errors  and  irregularities  in  the  proceedings  resulting 

1  Phillips  v.  Walsh,  66  N.  C.  233. 
9  Dresbach  v.  Stein,  41  Ohio  St.  70. 
•Bolgiano  v.  Cook,  19  Md.  375. 


CAVEAT  EMPTOR.  77 

in  the  decree  under  which  the  purchase  is  made,  or  such  as  are 
founded  upon  inherent  defects  in  the  title  independent  of  such  pro- 
ceedings, for  example,  the  existence  of  a  better  title  in  a  stranger 
than  that  which  the  court  undertakes  to  sell.  In  either  case  objec- 
tions to  the  title  must  be  made  before  the  sale  is  confirmed. 

§  46.  Effect  of  confirmation  of  the  sale.  It  has  been  said  that 
the  doctrine  caveat  emptor  applies  in  all  its  force  to  judicial  sales, 
that  is,  that  it  will  be  conclusively  presumed  that  the  purchaser  con- 
tracts to  take  the  title,  such  as  it  may  be.1  This  presumption,  how- 
ever, does  not  apply  until  the  sale  has  been  confirmed.  The  pur- 
chaser may  always  resist  the  confirmation  of  the  sale  on  the  ground 
that  the  title  is  bad,2  and  he  may  have  a  reference  to  a  master  to 

1  Rorer  Jud.  Sales  (2d  ed.),  §§  150,  174,  476,  528,  602,  694,  923. 

Corwin  v.  Benham,  2  Ohio  St.  36. 

Hously  v.  Lindsay,  10  Heisk.  (Term.)  651. 

Brown  v.  Wallace,  4  Gill  &  J.  (Md.)  479. 

Cashon  v.  Faina,  47  Mo.  133;  Stephens  v.  Ells,  65  Mo.  456. 

The  reasons  for  this  rule  are  set  forth  in  the  following  extract  from  the 
opinion  of  the  court  in  Bishop  v.  O'Conner,  69  111.  431:  "  In  all  judicial  sales  the 
presumption  is  that  as  the  rule  caveat  emptor  applies,  the  purchaser  will  examine 
the  title  with  the  same  care  that  a  person  does  who  receives  a  conveyance  of  land 
by  a  simple  quit-claim  deed.  When  he  knows  there  are  no  covenants  to  resort  to 
in  case  he  acquires  no  title,  the  most  careless,  saying  nothing  of  the  prudent, 
would  look  to  the  title  and  see  that  it  was  good  before  becoming  a  purchaser  at 
such  sale.  Or  if  not,  he  must  expect  to  procure  it  on  such  terms  as  he  might 
sell  the  claim  for  a  profit.  As  well  might  a  person  purchasing  by  quit-claim 
deed  file  a  bill  to  be  reimbursed  on  the  failure  of  title  as  where  the  purchase  is 
made  at  a  sale  by  an  administrator.  Both  kinds  of  purchase  depend  upon  the 
game  rule.  It  is  the  policy  of  the  law  only  to  invest  a  sheriff,  master  in  chancery, 
or  administrator  in  making  sales  of  real  estate  with  a  mere  naked  power  to  sell 
such  title  as  the  debtor  or  deceased  had,  without  warranty,  or  any  terms  except 
those  imposed  by  law.  They  are  the  mere  instruments  of  the  law  to  pass  such, 
and  only  such,  title  as  was  held  by  the  debtor  or  intestate.  Then,  if  the  pur- 
chaser in  this  case  observed  but  ordinary  prudence,  he  had  the  title,  and,  as  a 
part  of  it,  the  proceedings  under  which  he  purchased,  examined,  and  whether  so 
or  not,  we  must  presume  that  he  determined  to  take  the  risk  of  the  title  upon 
himself.  We  have  no  hesitation  in  saying  that  the  rule  of  caveat  emptor  applies 
in  this  case  in  full  force." 

»  Sugd.  Vend.  (8th  Am.  ed.)  152;  Freeman  Void  Jud.  Sales,  §  48;  Rorer  Jud. 
Sales  (2d  ed.),  §  165;  Fryer  v.  Rockefeller,  63  N.  Y.  268;  Trapier  v.  Waldo,  II 
So.  Car.  276;  Toole  v.  Toole,  112  N.  Y.  333;  Bird  r.  Smith,  101  Ky.  205;  40 
S.  W.  571. 

This  proposition  appears  to  have  been  limited,  in  Pennsylvania,  to  cases  in 
which  the  purchaser  has  been  deceived  or  misled.  De  Haven's  Appeal,  106  Pa. 


78  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

determine  whether  a  good  title  can  be  made.1  But  if  he  permits 
the  sale  to  be  confirmed  without  objection,  he  cannot  afterwards 
refuse  to  pay  the  purchase  money  because  of  imperfections  in  the 
title,2  or  irregularities  in  the  proceedings  under  which  he  pur- 

St.  612,  citing  Schug's  Appeal,  14  W.  N.  C.  (Pa.)  49;  Binford's  Appeal,  164  Pa. 
St.  435;  30  Atl.  Rep.  298. 

At  a  judicial  sale  the  purchaser  buys  at  his  peril,  as  in  ordinary  sales  under 
execution,  the  only  difference  being  that  in  sales  by  the  chancellor  through  hig 
commissioner  the  purchaser  may  have  relief  for  defective  title  before  the  sale  is 
confirmed,  but  not  after.  Humphrey  v.  Wade,  84  Ky.  391;  1  8.  W.  Rep.  648. 

A  purchaser  at  a  judicial  sale  cannot,  in  case  of  the  existence  of  judgment 
creditors  not  before  the  court,  be  required  to  complete  his  purchase  without  their 
concurrence.  Governor  of  Hospital  v.  West.  Imp.  Cominrs.,  1  De  G.  &  J.  531.  He 
must  see  that  all  judgment  creditors  have  come  in  under  the  decree,  for  those 
who  have  not  done  so  may  subject  the  land  in  his  hands  to  the  payment  of  their 
judgment.  2  Sugd.  Vend.  (8th.  Am.  ed.)  156  (521). 

Rule  caveat  emptor  does  not  apply  at  judicial  sale  as  at  execution  sale,  until 
after  confirmation.  Charleston  v.  Blohme,  15  So.  Car.  124;  40  Am.  Rep.  690. 

1  2  Jones  Mortgages,  §  1648;  Rorer  on  Jud.  Sales  (2d  ed.),  §  150;  Gordon  v. 
Sims,  2  McCord  Ch.  (S.  C.)  151.  In  England  the  title  is  directed  to  be  investi- 
gated before  a  sale  in  chancery  is  made.  1  Sugd.  Vend.  (8th  Am.  ed.)  13.  The 
court  confirms  judicial  sales,  and  in  so  doing  exercises  large  powers  in  correcting 
errors.  Reasonable  time  is  always  given  for  the  examination  of  title,  and,  if 
necessary,  a  reference  will  be  ordered.  Mitchell  v.  Pinckney,  13  So.  Car.  203, 
212. 

The  right  of  the  purchaser  to  have  a  reference  of  the  title  is  denied  in  Anderson 
T.  Foulke,  2  Harr.  &  G.  (Md.)  346,  358.  In  re  Browning,  2  Paige  Ch.  (N.  Y.)  64, 
a  reference  of  title  was  directed  on  the  application  of  the  purchaser  after  con- 
firmation of  the  sale. 

*2  Jones  on  Mortgages,  §  1647;  Freeman  Void  Jud.  Sales,  §  48;  Wood  v.  Mason, 
3  Sumn.  (U.  S.)  318. 

Threlkeld  v.  Campbell,  2  Grat.  (Va.)  198;  44  Am.  Dec.  384;  Thomas  v.  David- 
gon,  76  Va.  338;  Hickson  v.  Rucker,  77  Va.  135;  Long  v.  Weller,  29  Grat.  (Va.) 
347;  Watson  v.  Hoy,  28  Grat.  (Va.)  698;  Young  v.  McClung,  9  Grat.  (Va.)  336; 
Daniel  v.  Leitch,  13  Grat.  (Va.)  195. 

Jennings  v.  Jenkins,  9  Ala.  285;  Perkins  v.  White.  7  Ala.  855. 

Williams  v.  Glenn,  87  Ky.  87;  7  S.  W.  Rep.  610;  Fox  v.  McGoDdwin,  21 
Ky.  L.  R.  1776;  56  S.  W.  515. 

Hedrick  v.  Yount,  22  Kans.  344. 

Barron  v.  Mullin,  21  Minn.  374. 

Dresbach  v.  Stein,  41  Ohio  St.  70. 

Capehart  v.  Dowery,  10  W.  Va.  130. 

Williamson  v.  Field,  2  Sandf.  Ch.  (N.  Y.)  583;  Hammond  v.  Chamberlain, 
58  Neb.  445;  78  N.  W.  718. 

In  Rorer  on  Judicial  Sales  (2d  ed.  §  150)  it  is  said  that  "  although  the  rule 
caveat  emptor  applies  after  the  (judicial)  sale  is  closed  by  payment  of  the  pur- 
chase money  and  delivery  of  the  deed,  if  there  be  no  fraud;  yet  the  buyer,  if  he 


CAVEAT  EMPTOB.  79 

chased.1  In  this  respect  his  failure  to  make  seasonable  objection  to 
the  title  has  the  same  effect  as  would  his  acceptance  of  a  conveyance 
without  covenants  for  title.  It  has  also  been  held  that  if  the  pur- 
chaser bid  with  notice  of  defects  in  the  title,  he  cannot  set  up  those 
defects  as  a  ground  for  resisting  a  confirmation  of  the  sale.2  We 
shall  see  that  the  same  rule  prevails  in  cases  of  private  sale.8  It 
seems  to  be  the  better  opinion  that  confirmation  of  the  sale  is  con- 
clusive upon  the  purchaser,  whether  he  had  or  had  not  notice  of  the 
defective  title.  It  is  certainly  so  where  he  had  notice  of  the  defect,4 
or  wherever,  by  reasonable  diligence,  he  might  have  obtained  notice, 

discover  the  defect  beforehand,  will  not  be  compelled  to  complete  the  sale,  "citing 
Ormsby  v.  Terry,  6  Bush  (Ky.),  553,  a  case  which  seems  to  decide  no  more  than 
that  the  court  will  not  confirm  the  sale  and  compel  the  purchaser  to  execute  his 
bonds  for  the  deferred  payments  of  the  purchase  money  if  the  title  be  bad  and 
the  purchaser  object.  It  is  not  probable  that  more  than  this  last  proposition  is 
intended  by  the  author  referred  to,  since  the  rule  is  almost  universal,  as  has  been 
seen,  that  the  maxim  caveat  emptor  applies  in  its  fullest  extent  after  the  confirma- 
tion of  a  judicial  sale,  whether  the  purchase  money  has  or  has  not  been  paid, 
except  in  certain  cases  where  the  decree  or  j  udgment  under  which  the  sale  was 
made  was  void  on  the  ground  of  fraud  or  want  of  jurisdiction,  or  where  the  sale 
itself  was  tainted  with  fraud;  and  except,  perhaps,  in  some  of  the  States,  where 
the  purchaser  has  been  evicted  and  the  fraud  arising  from  the  sale  remains  undis- 
turbed in  the  hands  of  the  court,  or  in  the  hands  of  the  purchaser. 

After  confirmation  of  a  judicial  sale  it  cannot  be  avoided  in  a  collateral  pro- 
ceeding by  showing  defects  in  the  notice  of  sale  (Wyant  v.  Tuthill,  17  Neb.  495; 
23  N.  W.  Rep.  342),  or  that  security  for  the  payment  of  the  purchase  money 
was  not  required  (Wilkerson  v.  Allen,  67  Mo.  502);  or  that  the  officer  who 
made  the  sale  had  no  authority  for  that  purpose  (Core  v.  Strieker,  24  W.  Va.  689); 
or  that  he  departed  from  the  prescribed  order  of  sale  (McGavock  v.  Bell,  3  Coldw. 
[Tenn.]  512);  or  that  the  appointment,  of  the  selling  jfficer  was  invalid.  Mech. 
Sav.  &  B.  L.  Assn.  v.  O'Conner,  29  Ohio  St.  651. 

It  cannot  be  denied  that  the  rule  stated  in  the  text  may  produce  hardship  in 
some  cases,  especially  where  by  statute  a  confirmation  of  the  sale  is  permitted  to 
be  made  by  a  judge  at  chambers  or  during  vacation  of  the  court,  on  motion  of  a 
party,  and  notice  to  those  interested,  in  which  case  the  interval  between  the  sale 
and  the  confirmation  is  usually  short.  Of  course,  however,  if  the  motion  be 
made  by  the  purchaser,  and  the  title  should  turn  out  to  be  defective,  he  has  no 
one  but  himself  to  blame,  as  common  prudence  would  dictate  that  he  satisfy 
himself  about  the  title  before  moving  to  confirm  the  sale. 

1  Jennings  v.  Jennings,  9  Ala.  285;  Wilson  v.  Raben,  24  Neb.  368;  38  N.  W. 
Rep.  844. 

1  Riggs  v.  Pursell,  66  N.  Y.  193;  74  N.  Y.  371.  In  Carneal  v.  Lynch,  91  Va. 
114;  20  S.  E.  959,  the  purchaser  objected  to  confirmation  of  the  sale  on  the 
ground  that  the  property  encroached  2%  inches  on  a  street.  But  as  a  map 
was  exhibited  before  the  sale  showing  the  encroachment,  which  map  he  saw 
but  did  not  examine  closely,  he  was  required  to  take  the  property. 

•Post,  "Waiver  of  Objections,"  §  85. 

'Jennings  v.  Jenkins,  9  Ala.  285,  291. 


80  MARKETABLE  TITLE  TO  REAL,  ESTATE. 

as  where  the  defect  appears  from  records  or  documents  accessible 
to  him.1  A  purchaser  at  a  judicial  sale  is  presumed  to  have  notice 
of  a  want  of  jurisdiction  appearing  from  the  record  of  the  proceed- 
ings under  which  he  purchased.2  It  is  to  be  observed  that  the 
maxim  caveat  emptor  applies  as  well  in  equity  as  at  law.  Failure 
of  title  under  judicial  or  ministerial  sales,  apart  from  any  question 
of  fraud,  mistake  or  surprise  in  the  procuration  or  rendition  of  the 
judgment  under  which  the  sale  was  made,  or  fraud  or  mistake  in 
the  sale  itself,  affords,  after  confirmation  of  the  sale,  no  ground  for 
relief  in  equity  against  the  obligation  of  the  contract.3  A  pur- 
chaser at  a  judicial  sale  may,  before  confirmation,  raise  the  objec- 
tion that  the  title  is  unmarketable ;  he  is  not  bound  to  show  that 
it  is  absoutely  bad.4  He  cannot  be  required  to  take  a  title  which 
he  must  support  by  bill  of  injunction  against  a  third  person.6 
Generally,  a  purchaser  by  private  contract  cannot  be  compelled 
to  take  an  equitable  title,6,  but  the  rule  is  otherwise,  at  least  in 
England,  in  case  of  purchases  under  decree  in  chancery.7  A 
purchaser  at  a  judicial  sale  cannot,  of  course,  object,  after  confir- 
mation of  the  sale,  that  the  title  is  unmarketable  or  doubtful.8  The 
rule  caveat  emptor  applies  as  well  to  incumbrances  as  to  defects  of 
title  proper.  After  confirmation  of  the  sale  the  existence  of  an 
incumbrance  upon  the  premises  is  no  ground  for  detaining  the 
purchase  money,  nor  for  recovering  it  back  from  the  plaintiff  in 

1  Smith  v.  Winn,  38  S.  Car.  188;  17  S.  E.  Rep.  717. 

8  Campbell  v.  McCahan,  41  111.  445.  It  is  the  business  of  a  purchaser  at  a 
judicial  sale  to  see  that  all  the  persons  who  are  necessary  to  convey  the  title 
are  before  the  court,  and  that  the  sale  is  made  according  to  the  decree.  2  Dan. 
Ch.  Pr.  1456;  Daniel  v.  Leitch,  13  Grat.  (Va.)  195. 

'Long  v.  Waring,  25  Ala.  625;  McCartney  v.  King,  25  Ala.  681;  Holmes  T. 
Shaver,  78  111.  578;  Hand  v.  Grant,  10  Sm.  &  M.  (Miss.)  514;  43  Am.  Dec. 
528.  A  purchaser  at  a  judicial  sale  cannot  enjoin  the  collection  of  the  pur- 
chase money  on  the  ground  that  the  title  has  failed.  McManus  v.  Keith,  4» 
111.  388;  Threlkeld  v.  Campbell,  2  Grat.  (Va.)  198;  44  Am.  Dec.  384. 

4  See  post,  chapter  31,  where,  also,  is  considered  what  matters  render  a 
title  doubtful.  Handy  v.  Waxter,  (Md.)  23  Atl.  Rep.  1035;  McCafferj  T. 
Little,  20  App.  D.  C.  116;  Trust  Co.  v.  Muse,  4  App.  D.  C.  12. 

•  1  Sugd.  Vend.   (8th  Am.  ed.)   593;  Shaw  v.  Wright,  3  Ves.  22. 

•Post,  ch.  30. 

T 1  Sugd.  Vend.  (8th  Am.  ed.)  152.  The  rule  that  a  purchaser  will  not  b« 
compelled  to  take  an  equitable  title  does  not  extend  to  estates  sold  under  the 
decree  of  a  court  of  equity,  where  the  legal  title  is  vested  in  an  infant. 
1  Sugd.  Vend.  592,  at  p.  594,  it  is  said  that  this  "  anomaly  "  is  removed  by 
etatute,  enabling  the  court  to  make  a  good  title.  In  Bryan  v.  Read,  1  Dev. 
&  Bat.  Eq.  (N.  C.)  78,  86,  it  was  held  that  a  purchaser  at  a  judicial  sale 
under  decree  against  an  infant  could  not  be  compelled  to  complete  the  contract, 
because  the  infant  might  show  cause  against  the  decree  when  of  age. 

•Boorum  v.  Tucker,   (N.  J.  Eq.)   26  Atl.  Rep.  456. 


CAVEAT  EMPTOB.  81 

the  suit  in  which  the  sale  was  made,1  though,  as  will  hereafter 
be  seen,  the  purchaser  will  in  some  cases  be  subrogated  to  the 
rights  of  such  plaintiff  against  the  property  purchased,  or  to  the 
benefit  of  the  lien,  claim  or  incumbrance  that  he  has  been  com- 
pelled to  pay  to  perfect  his  title,  or  to  the  satisfaction  of  which 
the  purchase  money  paid  by  him  has  been  applied.2  While  the 
purchaser  may  resist  the  confirmation  of  the  sale  on  the  ground 
that  the  title  is  defective,  he  will  not  be  relieved  from  his  Lid  if 
the  title  can  be  perfected  within  a  reasonable  time.3  The  rule 
that  the  vendor  may  perfect  the  title  where  time  is  not  of  the  es- 
sence of  the  contract  especially  applies  in  cases  of  judicial  sale.4 
He  may  also  be  required  to  take  the  title,  with  compensation 
or  abatement  of  the  purchase  money,  in  case  of  failure  of  title 
to  a  small  portion  of  the  property  not  material  to  the  enjoyment 
of  the  rest.6 

The  objection  that  there  are  liens  on  the  property  cannot  be 
made  where  the  lienb.olders  are  parties  to  the  suit  in  which  the 
property  was  sold,  with  a  right  to  have  the  proceeds  applied  to 
the  satisfaction  of  their  liens.6 

§  47.  Exceptions  to  the  rule  caveat  emptor.  It  is  true,  as  a  gen- 
eral rule,  that  a  purchaser  at  a  judicial  sale  cannot  detain  or  have 
restitution  of  the  purchase  money  on  the  ground  that  the  title  is 
defective,  after  the  sale  has  been  confirmed.  But  exceptions  have 
been  made  to  this  rule  in  cases  of  mistaken  or  fraudulent  represen- 
tations as  to  the  title  by  the  officer  making  the  sale,  and  where  the 
fund  arising  from  the  sale  remains  under  the  control  of  the  court. 
Thus,  where  an  officer  of  the  court,  selling  under  a  decree,  adver- 
tised the  title  to  be  indisputable,  and  the  purchaser  afterwards 
discovered  that  there  was  in  fact  no  title,  it  was  held  that  the  court 
must,  even  after  confirmation  of  the  sale,  the  purchase  money  not 
having  been  distributed,  vacate  the  sale  on  petition  of  the  purchaser, 
and  direct  that  the  purchase  money  he  refunded  to  him.7  And  it 

1  Farmers'  Bank  v.  Martin,  7  Md.  342;  Farmers'  Bank  v.  Peter,  13  Bush 
(Ky.),  594;  Williams  v.  Glenn,  87  Ky.  87;  7  S.  W.  Rep.  610;  Worthington  T. 
McRoberts,  9  Ala.  297. 

8 Post,  this  chapter,  "Subrogation,"  §§  65,  66.' 

'Ormsby  v.  Terry,  6  Bush  (Ky.),  553. 

*  Thomas  v.  Davison,  76  Va.  342.    In  Lamkin  v.  Reese,  7  Ala.  170,  it  was  held 
that  though  the  court  had  no  jurisdiction  to  order  a  sale  of  the  land,  yet,  if  the 
purchaser   went  into  possession  he  could  not,  after  the  lapse  of  two  years, 
rescind  the  contract  if  the  heirs  were  then  able  and  willing  to  make  him  a  title. 

'Riggs  v.  Pursell,  66  N.  Y.  193;  Merges  v.  Ringler,  54  N.  Y.  Supp.  280; 
34  App.  Div.  415. 

•  Blanton  v.  Ky.  Distilleries,  etc.,  Co.,  120  Fed.  318. 

7  Preston  v.  Fryer,  38  Md.  221.  In  this  case  it  appeared  that  a  married  woman 
had  conveyed  her  separate  estate  to  her  husband,  and  afterward  died  before  her 

11 


82  MARKETABLE  TITLE  TO  KEAL  ESTATE. 

has  even  been  held,  irrespective  of  the  question  of  fraud  or  mistake, 
that  if,  while  the  fund  is  yet  in  court,  the  purchaser  should  be  dis- 
turbed in  his  possession,  or  exposed  to  disturbance  by  one  having  a 
clear  paramount  title  to  the  estate,  which  was  unknown  to  the  pur- 
chaser at  the  time  of  the  sale,  the  sale  should  rescinded,  and  the 
purchase  money  restored  to  the  purchaser.1  The  same  case  decides 
that  if  the  purchase  money  has  been  distributed  by  the  court,  the 
purchaser  can  have  no  relief. 

It  has  been  held  that  the  rule  caveat  emptor  does  not  apply  to 
eases  in  which  the  court  had  no  jurisdiction  to  direct  the  sale  at 
which  the  purchaser  bid,  and  that  in  such  a  case  the  purchaser 
might  have  restitution  of  the  purchase  money  even  after  confirma- 
tion of  the  sale.2  And,  generally,  it  has  been  held  that  a  purchaser 

husband.  On  the  death  of  the  husband  suit  was  brought  for  sale  of  the  land  and 
distribution  of  the  proceeds  among  his  heirs.  The  deed  to  the  husband  was  a 
nullity,  but  the  officer  of  the  court  advertised  the  title  to  be  good,  and  the  pur- 
chaser bought  under  that  impression.  But  for  the  fact  that  the  proceeds  of  sale 
remained  undistributed  in  the  cause  when  restitution  was  made,  and  but  for  the 
unnecessary  declaration  by  the  officer  that  the  title  was  good,  it  would  be  difficult 
to  reconcile  this  case  with  the  rule  caveat  emptor,  as  applied  to  judicial  sales  in 
other  jurisdictions.  While  there  is  no  warranty  at  a  judicial  sale,  yet,  if  the 
purchaser  when  sued  for  the  purchase  money  can  show  that  at  the  sale  there  were 
misrepresentations  as  to  the  thing  sold,  whether  willful  or  not,  he  may  set  up 
such  misrepresentations  as  a  defense  to  the  action.  Charleston  v.  Blohme,  15  So. 
Car.  124;  40  Am.  Rep.  690,  citing  State  v.  Gaillard,  2  Bay  (S.  C.),  11;  1  Am.  Dec. 
628;  Means  v.  Brickell,  2  Hill  (S.  C.),  657;  Adams  v.  Kibler,  7  So.  Car.  58;  Mitch- 
ell v.  Pinckney,  13  S.  Car.  203. 

1  Glenn  v.  Clapp,  11  Gill  &  J.  (Md.)  1.  This  holding  is  largely  obiter  dictum,  as 
the  purchase  money  in  the  case  had  not  been  paid,  and  the  case  itself  was  an 
appeal  from  an  order  confirming  the  sale  as  against  the  purchaser's  objections  ta 
the  title.  The  rule  announced  seems  eminently  just  and  equitable,  but  it  cannot 
be  easily  reconciled  with  the  general  rule  that  a  purchaser  at  a  judicial  sale  cannot 
be  relieved  from  his  bargain  after  confirmation  of  the  sale,  on  the  ground  that  the 
title  has  failed. 

8Boggs  v.  Hargrave,  16  Cal.  559;  76  Am.  Dec.  561,  citing  Darvin  v.  Hillfield, 
4  Sandf.  Sup.  Ct.  (N.  Y.)  468;  Kolher  v.  Kolher,  2  Edw.  Ch.  (N.  Y.)  69;  Post  v. 
Leet,  8  Paige  (N.  Y.),  337;  Seaman  v.  Hicks,  8  Paige  (N.  Y.),  655;  Brown  v. 
Frost,  10  Paige  (N.  Y.),  243;  Shively  v.  Jones,  6  B.  Mon.  (Ky.)  275.  This  is 
doubtless  true  in  any  case  in  which  the  court  was  without  jurisdiction  of  the 
person  of  the  defendant,  or  in  which  the  suit  was  of  a  kind  of  which  the  court 
could  not  take  cognizance.  But  in  the  principal  case  the  objection  to  the  juris- 
diction was  that  the  defendant  had  no  title  to  the  property;  that  the  title  waa 
outstanding  in  one  who  had  not  been  made  a  party,  and  the  objection  was  sus 


CAVEAT  EMPTOB.  83 

at  a  judicial  sale  which  is  void  for  want  of  jurisdiction  in  the  court 
to  order  the  sale,  or  for  other  cause,  may  resist  the  payment  of  the 
purchase  money,  even  after  the  purchaser's  bid  had  been  accepted 
by  the  court.1  There  can  be  no  confirmation  of  that  which  is  void. 
We  have  elsewhere  attempted  to  show  that  this  eminently  just  and 
equitable  doctrine  is  inconsistent  with  the  rule  caveat  emptor,  as  the 
purchaser  may  inform  himself  of  the  want  of  jurisdiction  by  exam- 
ining the  proceedings  in  the  cause.2  Nor  does  the  rule  apply  where 
there  was  no  such  land  in  existence  as  the  officers  of  the  court 
undertook  to  sell.8  Nor  where  the  premises  were  in  the  possession 
of  one  claiming  adversely  at  the  time  of  the  sale,  the  purchaser  and 
the  parties  being  ignorant  of  such  person's  claim,  or  that  he  intended 
to  retain  possession.4  The  purchaser  will  not  be  deprived  of  his 
right  to  reject  a  defective  title,  and  enjoin  the  collection  of  the  pur- 
chase money,  where  he  has  been  led  by  the  conduct  of  the  parties 
to  postpone  a  motion  to  set  aside  an  order  confirming  the  sale,  until 
after  the  close  of  the  term  at  which  the  order  was  made.5 

The  rule  that  a  purchaser  at  a  judicial  sale  cannot,  after  the 
sale  has  been  confirmed,  refuse  to  pay  the  purchase  money  on 
the  ground  that  the  title  is  defective,  is  salutary  where  the 
objection  is  merely  that  the  title  is  unmarketable,6  or  where  there 

tained,  and  the  purchaser  permitted  to  recover  back  the  purchase  money.  Such 
a  principle  goes  far  towards  destroying  altogether  the  application  of  the  maxim 
caveat  emptw  to  judicial  sales  that  have  been  confirmed,  since  in  most  instances 
the  purchaser  seeks  relief  on  the  ground  that  the  title  is  outstanding  in  a  stranger. 

'Freeman  Void  Jud.  Sales,  §  48;  Todd  v.  Dowd,  1  Mete.  (Ky.)  281;  Carpenter 
v.  Strother,  16  B.  Mon.  (Ky.)  389;  Barrett  v.  Churchill,  18  B.  Mon.  (Ky.)  387. 

*  Post,  this  chapter,  §  61. 

8  Strodes  v.  Patton,  1  Brock.  (U.  S.)  228,  per  MARSHALL,  C.  J.  A  decree 
directed  the  sale  of  the  lands  whereof  H.  died  "seized  and  possessed."  The  offi- 
cers of  the  court  at  the  time  of  the  sale  exhibited  certain  conveyances  to  H.,  but 
disclaimed  any  responsibility  for  quantity  or  title,  and  declared  that  the  pur- 
chaser must  buy  at  his  risk.  It  appeared  that  H.  had  never  been  seized  of  one  of 
the  tracts  so  conveyed,  and  was  not  entitled  to  anything  by  virtue  of  the  con- 
veyance thereof.  The  sale  was  treated  as  having  been  made  without  authority, 
or  by  mistake,  and  the  purchasers  were  relieved,  even  after  confirmation. 

«McGown  v.  Wilkins,  1  Paige  Ch.  (N.  Y.)  120,  the  court  saying:  "This  is  not 
like  the  case  of  a  sale  by  the  sheriff  on  execution.     There  the  court  never  give* 
possession  to  the  purchaser,  even  as  against  the  party  to  the  suit." 
•Morrow  v.  Wessell,  (Ky.)   1  S.  W.  Rep.  439. 

•  Worthington  v.  McRoberts,  9  Ala.  297.  In  Mahoney  v.  Allen,  42  N.  Y, 
Supp.  11,  the  purchaser  was  permitted  to  make  objections  of  that  kind  after 
the  sale  Avas  confirmed. 


84  MARKETABLE  TITLE  TO  HEAL  ESTATE. 

is  no  probability  that  the  purchaser  will  ever  be  disturbed  in  his 
possession,  and  the  alleged  imperfections  have  been  ferreted  out  as 
an  excuse  for  the  detention  of  the  purchase  money.  But  where 
there  is  a  clear  and  palpable  failure  of  the  title,  as  where  the  pur- 
chaser has  been  evicted  by  an  adverse  claimant,  or  where  the  rights 
of  the  holder  of  the  paramount  title  are  being  asserted,  or  will 
inevitably  be  asserted,  by  hostile  proceedings,  it  would  seem  that 
neither  the  ends  of  justice  nor  of  legal  policy  or  convenience  can 
be  subserved  by  compelling  the  purchaser  to  pay  his  money  into 
court,  when  the  court  can  give  him  nothing  in  return.  Accordingly, 
in  several  such  cases,  not  only  has  the  purchaser  been  permitted  to 
detain  the  unpaid  purchase  money,  but  restitution  thereof  has  been 
made  to  him  where  the  fund  accruing  from  the  sale  remained  undis- 
tributed in  the  hands  of  the  court.1  In  other  cases,  a  distinction  has 
been  made  between  sales  in  partition,  or  other  voluntary  sales,  and 
those  in  which  the  sale  is  to  compel  the  payment  of  a  debt,  holding 
in  the  former  case  that  the  purchaser  may  detain  the  purchase 
money,  and  in  the  latter  that  he  must  pay  it  though  evicted  by  title 
paramount.2  The  proposition  that  a  purchaser  at  a  judicial  sale,  who, 

Preston  v.  Fryer,  38  Md.  221.  Boggs  v.  Hargrave,  16  Cal.  559;  76  Am. 
Dec.  561.  Weems  v.  Love  Mfg.  Co.,  74  Miss.  831;  21  So.  915.  See,  also, 
Charleston  v.  Blohme,  15  So.  Car.  124;  40  Am.  Rep.  690.  The  case  of  Glenn  v. 
Clapp,  11  Gill.  &  J.  (Md.)  1,  has  been  cited  to  this  point,  but  an  examination 
of  that  case  shows  that  the  purchaser's  objections  to  the  title  were  made 
before  continuation  of  the  sale.  See  Rorer  on  Jud.  Sales  (2d  ed.),  78. 

*  Latimer  v.  Wharton,  (So.  Car.)  19  S.  E.  Rep.  855.  Here  the  purchaser  in  a 
suit  for  the  administration  of  the  assets  of  a  deceased  debtor's  estate,  sought  to 
enjoin  a  judgment  for  the  purchase  money  on  the  ground  that  he  had  been 
evicted  by  an  adverse  claimant,  and  it  was  held  that  the  sale  of  the  land  having 
been  compulsory,  he  must  pay  the  purchase  money;  the  court  observing:  "It 
is  well  known  that  the  reason  of  the  rule  of  caveat  emptor  at  sheriff's  sales  is 
because  such  sales  are  forced  and  are  made  under  compulsory  process.  There  is 
not  the  same  reason  for  holding  that  the  rule  should  prevail  where  the  officer 
selling  the  property  is  regarded  as  the  agent  of  the  parties,  such  as  sales  for  par- 
tition and  those  made  by  executors  and  administrators."  This  case  contains  an 
interesting  review  of  the  South  Carolina  authorities  upon  the  right  of  the  pur- 
chaser at  a  judicia\  sale  to  detain  the  purchase  money  on  failure  of  the  title.  As 
to  such  right  in  this  State  in  case  of  a  private  sale,  see  post,  §  190.  In  Smith 
v.  Brittain,  3  Ired.  Eq.  (N.  C.)  347,  351;  42  Am.  Dec.  175,  which  was  a  suit  for 
partition,  it  was  said  by  RUFFIN,  C.  J.:  "A  sale  by  the  master  in  a  case 
of  this  kind,  is  but  a  mode  of  sale  by  the  parties  themselves.  It  is  not 


CAVEAT  EMPTOK.  85 

after  confirmation  of  the  sale,  has  been  evicted  by  title  paramount, 
will  not  be  compelled  to  pay  the  unpaid  purchase  money  when  the 
facts  avoiding  the  title  were  not  such  as  he  could  have  discovered 
by  the  exercise  of  reasonable  prudence,  care  and  diligence,  com- 
mends itself  to  the  mind  as  equitable  and  just.  It  is  believed  that 
no  serious  inconvenience  could  result  from  such  a  rule,  while  a  bene- 
fit consequent  thereon  is  obvious.  Judicial  sales  are  usually  made 
upon  an  extended  credit,  and  if  purchasers  could  be  assured  that 
they  would  not  be  compelled  to  pay  the  unpaid  purchase  money  if 
they  should  be  evicted  by  some  one  having  a  better  title,  it  is  fair  to 
assume  that  better  prices  for  property  thus  sold  would  be  realized. 
We  cannot  refrain  from  expressing  here  a  regret  that  the  rule  caveat 
emptor,  as  applicable  to  judicial  and  ministerial  sales,  has  not  been 
universally  so  qualified  as  to  permit  the  purchaser  to  detain  the  pur- 
chase money  if,  before  it  is  paid,  he  discovers  that  the  title  is  abso- 
lutely bad,  and  not  merely  doubtful  or  suspicious.  If  he  bids  under 
the  impression  that  he  will  not  be  compelled  to  pay  the  purchase 
money  should  he  get  no  title  —  and  the  vast  number  of  decisions 
enforcing  the  rule  caveat  emptor  attest  the  fact  that  many  such  bids 
are  made  —  the  rule  is  to  him  a  snare  and  a  pitfall.  If,  on  the  other 
hand,  he  bids  knowing  that  he  must  pay  the  purchase  money,  though 
he  be  evicted  from  the  premises,  the  property  is  sold  for  a  merely 
nominal  sum,  thus  entailing  loss  and  sacrifice  upon  the  owners,  and 
often  upon  creditors  at  whose  instance  the  sale  was  made. 

But  the  generally  prevalent  rule  and  the  weight  of  authority 
undoubtedly  is  that  a  purchaser  at  a  judicial  sale  proper  will  not  be 
permitted  to  have  restitution  of  the  purchase  money  after  it  has 
passed  beyond  the  control  of  the  court,  without  regard  to  the  nature 
or  extent  of  the  defect  of  title,1  except,  perhaps,  where  the  judg- 
ment or  decree  under  which  the  purchase  was  made  was  void  for 

merely  a  sale  by  the  law,  in.  tnvitum,  of  such  interest  as  the  party  has  or  may 
have,  in  which  the  rule  is  caveat  emptor,  but  professes  to  be  a  sale  of  a  particular 
estate,  stated  in  the  pleadings  to  be  vested  in  the  parties,  and  to  be  disposed  of 
for  the  purpose  of  partition  only.  Thereupon,  if  there  be  no  such  title,  the 
purchaser  has  the  same  equity  against  being  compelled  to  go  on  with  his 
purchase  as  if  the  contract  had  been  made  without  the  intervention  of  the 
court,  for,  in  truth,  the  title  has  never  been  passed  on  between  persons  con- 
testing it." 
1  Smith  v.  Winn,  38  So.  Car.  188;  17  S.  E.  Rep.  717. 


86  MARKETABLE  TITLE  TO  REAL  ESTATE. 

want  of  jurisdiction ;  *  nor,  after  the  sale  has  been  confirmed,  to 
detain  the  purchase  money  upon  mere  suggestions  of  doubts  and  dif- 
ficulties as  to  title,  nor  even  where  the  title  has  absolutely  and  pal- 
pably failed,  if  the  pleading  in  the  case  in  which  he  purchased  show 
the  true  state  of  the  title.2  And  in  no  case,  apart  from  questions 
of  fraud  or  deceit,  can  a  purchaser  at  a  sale  made  by  one  in  a  minis- 
terial or  fiduciary  capacity,  maintain  an  action  against  the  seller  to 
recover  damages  for  inability  to  convey  a  clear  title.  Inasmuch  as 
there  is  no  contract  in  such  a  case  that  the  purchaser  shall  receive  a 
good  title,  there  can  be  no  cause  of  action  against  the  vendor  if  the 
title  fails.8  We  have  seen,  however,  that  if  the  person  making  the 
sale  choose  to  execute  a  conveyance  with  general  warranty  to  the 
purchaser,  he  will  be  personally  liable  on  the  covenant.4 

It  has  been  held,  with  respect  to  the  maxim  caveat  emptor,  as 
applicable  to  judicial  sales,  that  a  distinction  is  to  be  observed 
between  cases  in  which  the  decree  directs  a  sale  of  the  "  land  "  itself, 
and  those  in  which  only  an  "  estate "  or  interest  in  the  land  is 
directed  to  be  sold,  and  that  in  the  former  case,  if  the  purchaser 
acquires  no  title,  he  may,  even  after  confirmation  of  the  sale,  hare 
the  contract  rescinded  and  the  purchase  money  returned,  but  that  in 
the  latter  case  he  must  take  the  title  at  his  risk.5  This  distinction 
does  not  appear  to  have  been  generally  observed. 

§  4:8.  Fraud  as  it  affects  rights  of  purchaser  at  judicial  sale. 
Fraud,  as  it  respects  the  rights  of  a  purchaser  at  a  judicial  sale  or 

J  See  Boggs  v.  Hargrave,  16  Cal.  559;  76  Am.  Dec.  561. 

1  Eccles  v.  Timmons,  95  N.  Car.  540.  Even  t  hough  the  purchaser  was  fraudu- 
lently induced  to  bid.  Norton  v.  Neb.  Loan  &  Tr.  Co..  35  Neb.  466:  53  N.  W. 
Rep.  481;  58  N.  W.  Rep  953. 

'A  rigorous  application  of  the  doctrine  caveat  tmptor  to  judicinl  sales  is  found 
in  Evans  T.  Dendy.  2  Spear  (S.  Car.),  9;  43  Am.  Dec.  356,  where  it  was  held  that 
a  purchaser  under  a  decree  in  partition  between  heirs  who  has  been  evicted  by 
title  paramouut,  cannot  recover  back  the  purchase  money,  though  it  remains 
undistributed  in  the  hands  of  the  officer  making  the  sale.  RICHARDSON.  J..  dis- 
sented upon  the  ground  that  the  officer  making  the  sale  is  the  mere  agent  of  the 
heirs,  and  that  such  a  sale  does  not  stand  upon  the  same  footing  as  a  sale  under 
execution.  See,  also,  Rogers  v.  Horn,  6  Rich.  L.  (S.  C.)  361.  It  is  to  be  observed 
that  in  Evans  v.  Dendy.  supra,  a  conveyance  without  covenants  for  title  had  been 
made  to  the  purchaser. 

4Po*t,  §69. 

*  Shields  v.  Allen,  77  N.  Car.  375,  criticised  but  not  overruled  in  Ellis  v.  Ander- 
ton,  88  N.  Car.  476.  This  case  holds  that  when  a  court  decrees  the  sale  of  land  it 


CAVEAT  EMPTOT?.  87 

of  one  claiming  under  such  purchaser,  is  either:  (1)  Fraud  antece- 
dent to  the  sale,  such  as  fraud  in  the  procuration  or  rendition  of  the 
judgment  or  decree  in  pursuance  of  which  the  sale  is  made ;  (2) 
Fraud  in  the  sale  itself,  such  as  collusion  between  the  officer  selling 
sind  the  purchaser,  by  which  the  property  is  sacrificed ;  and  (3) 
Fraud  on  the  part  of  the  officer  selling  or  parties  in  interest  in 
falsely  stating  the  condition  of  the  title,  with  intent  to  deceive.  In 
the  first  two  instances  the  sale  is  open  to  collateral  attack  by  the 
party  injured  and  by  the  purchaser  himself ;  fraud  in  these  respects 
is  considered  in  a  subsequent  section  of  this  work.1  In  the  last 
instance  there  are  cases  which  hold  that  if  the  purchaser  at  a  judi- 
cial sale  has  been  induced  to  bid  by  the  fraudulent  representations 
or  concealment  of  facts  respecting  the  title  on  the  part  of  the  officer 
or  of  others  interested  in  making  the  sale,  he  will  be  relieved  in 
equity  from  his  bid,  after  confirmation  of  the  sale.2  But  even  in  a, 
•case  of  misrepresentation  as  to  the  title,  the  purchaser  cannot  avoid 
the  sale  unless  he  can  show  that  he  could  not  have  discovered  the 
fraud  with  reasonable  diligence.3  Thus,  where  the  pleadings  in  a 
suit  to  foreclose  a  junior  mortgage  showed  the  existence  of  the  prior 
mortgage,  and  the  purchaser  at  foreclosure  sale  in  the  suit  was  induced 
to  bid  by  the  representations  of  the  officer  making  the  sale  and  by 
the  clerk  of  the  court,  that  there  was  no  prior  lien  on  the  property, 
it  was  held  that  he  could  not  be  relieved  from  the  contract,  as  he 
might  easily  have  informed  himself  of  the  true  state  of  the  title  by 
examining  the  pleadings.4 

is  the  duty  of  the  officer  selling  to  offer  a  good  title  to  the  land.  In  Miller  v.  Fee- 
zor,  82  N.  C.  192,  citing  Shields  v.  Allen,  supra,  it  was  said  that  the  maxim  caveat 
tmptor  did  not  apply  to  judicial  sales  in  North  Carolina. 

1  Post,  this  chapter,  §  52. 

J  Rorer  on  Jud.  Sales  (2d  ed.),  §  175;  Preston  v.  Fryer,  38  Md.  221;  Merrine 
v.  Vaulier,  3  Halst.  Ch.  (N.  J.)  34,  semble ;  Bishop  v.  O'Connor  69  HI.  431, 
dictum.  While  there  is  no  warranty  at  a  judicial  sale,  the  purchaser  when  sued 
lor  the  purchase  money  may  set  up  misrepresentations  as  to  the  title  as  a  defense. 
Charleston  v.  Blohme,  15  So.  Car.  124;  40  Am.  Rep.  690;  Mitchell  v.  Pinckney,  13 
So.  Car.  203.  Statements  in  a  bill  for  partition  that  complainants  are  the  owners 
of  the  property,  are  no  such  fraudulent  representations  as  to  the  title  by  those 
interested  in  a  sale  of  the  property  as  will  entitle  the  purchaser  to  relief. 
McManus  v.  Keith,  49  111.  388. 

1  Williams  v.  Glenn,  87  Ky.  87;  7  S.  W.  Rep.  610. 

«  Norton  v.  Neb.  Loan  &  Tr.  Co..  35  Neb.  466;  53  N.  W.  Rep.  481:  58  id.  95a 


88  MARKETABLE  TITLE  TO  REAL  ESTATE. 

Nor  will  the  purchaser  be  relieved  if  with  knowledge  of  the 
fraud  he  permits  the  sale  to  be  confirmed  without  objection.1  There 
are  cases  also  which  hold  that  the  officer  making  the  sale  has  no 
right  to  make  representations  concerning  the  title,  and  that,  there- 
fore, the  purchaser  has  no  right  to  rely  on  them,  and  will  not  be 
entitled  to  relief  if  he  should.2 

The  purchaser  may  of  course  resist  confirmation  of  the  sale  on 
the  ground  that  he  was  induced  to  bid  by  fraudulent  or  mistaken 
representations  as  to  the  state  of  the  title.3 

§  49.  Errors  and  irregularities  in  the  proceedings.  Collat- 
eral attack.  Errors  and  irregularities  in  judicial  proceedings  are 
either  such  as  render  the  judgment  or  decree  therein  pronounced 
absolutely  null  and  void,  or  such  as  render  them  voidable  only.  A 
judgment  rendered  against  one  who  has  not  been  brought  before 
the  court  by  due  process  of  law  is  absolutely  void.4  A  judgment 
founded  upon  a  misconception  of  the  law  of  the  case,  the  court 
having  acquired  jurisdiction  of  the  parties,  is  voidable  only.5  A 
void  judgment  is  open  to  collateral  attack.  A  voidable  judgment- 
can  be  vacated  or  annulled  only  upon  appeal  or  writ  of  error,  or  in 
some  direct  proceeding  between  the  parties.6  It  seems  to  be  settled 

1  Fore  v.  McKenzie,  58  Ala.  115. 

*  Vandever  v.  Baker,  13  Pa.  St.  126;  Slowthower  v.  Gordon,  23  Md.  1,  where 
it  was  said  that  there  is  no  relation  of  trust  and  confidence  between  the  officer 
making  a  judicial  sale  and  the  purchaser. 

J  Veeder  v.  Fonda,  3  Paige  (N.  Y.),  94;  Seaman  v.  Hicks,  8  Paige  (N.  Y.),  656; 
McGown  v.  Wilkins,  1  Paige  (N.  Y.),  120;  Morris  v.  Mowatt,  2  Paige  (N.  Y.), 
586;  22  Am.  Dec.  661;  Kauffman  v.  Walker,  9  Md.  229.  In  Tooley  v.  Kane,  1 
Sm.  &  M.  Ch.  (Miss.)  518,  it  was  said  that  the  court  would  set  aside  a  sale  in  case 
of  fraud,  even  after  confirmation. 

4  Black  on  Judgments  (1st  ed.),  245,  et  seq. 

'Freeman  on  Judgments  (4th  ed.),  §  117,  et  seq.;  Cox  v.  Davis,  17  Ala.  714;  52 
Am.  Dec.  199. 

*  Freeman  Void  Jud.  Sales,  §  20;  Black  on  Judgments,  §  261,  et  seq.;  Rorer  on 
Jud.  Sales  (2d  ed.),  §  171.     Swiggart  v.  Harber,  4  Scam.  (111.)  364;  39  Am.  Dec. 
418.     The  opinion  of  the  court  in  the  leading  case  of  Voorhees  v.  Bank  of  the  U. 
S.,  10  Pet.  (U.  S.)  449,  475,  contains  a  clear  exposition  of  this  doctrine:    "  The  line 
which  separates  error  in  judgment  from  the  usurpation  of  power  is  very  definite, 
and  is  precisely  that  which  denotes  the  cases  where  a  judgment  or  decree  is 
reversible  only  by  an  appellate  court,  or  may  be  declared  a  nullity  collaterally, 
when  it  is  offered  in  evidence  in  an  action  concerning  the  matter  adjudicated,  or 
purporting  to  have  been  so.     In  the  one  case  it  is  a  record  importing  absolute 


CAVEAT  EMPTOR.  89 

everywhere,  either  by  statute  or  judicial  declaration,  that  the 
reversal  of  a  judgment  or  decree  on  error  or  appeal  cannot  disturb 
the  title  of  a  purchaser  at  a  judicial  sale  under  such  judgment  or 
decree,1  except  in  a  case  in  which  the  land  sold  was  not  the  prop- 
erty of  the  defendant  in  the  cause,  and  the  alleged  debt  for  which 
the  land  was  sold  was  found  not  to  exist.2  And,  except,  also, 
in  some  of  the  States,  that  if  the  plaintiff  in  the  reversed  judgment 
be  himself  the  purchaser  of  the  land,  the  defendant  may  recover  it 
back.3  There  may  be  a  restitution  of  the  proceeds  of  the  sale  to 

verity;  in  the  other  mere  waste  paper.  There  can  be  no  middle  character  assigned 
to  judicial  proceedings  which  are  irreversible  for  error.  Such  is  their  effect 
between  the  parties  to  the  suit,  and  such  are  the  immunities  which  the  law  affords 
to  a  plaintiff  who  has  obtained  an  erroneous  judgment  or  execution.  It  would 
be  a  well-merited  reproach  to  our  jurisprudence  if  an  innocent  purchaser,  no 
party  to  the  suit,  who  had  paid  his  money  on  the  faith  of  an  order  of  a  coiirt, 
should  not  have  the  same  protection  under  an  erroneous  proceeding  as  the  party 
who  derived  the  benefit  accruing  from  it.  A  purchaser  under  judicial  process 
pays  the  plaintiff  his  demand  on  the  property  sold;  to  the  extent  of  the  purchase 
money  he  discharges  the  defendant  from  his  adjudged  obligation.  Time  has 
given  an  inviolable  sanctity  to  every  act  of  the  court  preceding  the  sale,  which 
precludes  the  defendant  from  controverting  the  absolute  right  of  the  plaintiff  to 
the  full  benefit  of  his  judgment,  and  it  shall  not  be  permitted  that  the  purchaser 
shall  be  answerable  for  defects  in  the  record,  from  the  consequence  of  which  the 
plaintiff  is  absolved.  Such  flagrant  injustice  is  imputable  neither  to  the  common 
nor  statute  law  of  the  land."  In  Lancaster  v.  Wilson,  27  Grat.  (Va.)  624,  629,  the 
court,  deciding  that  the  title  of  a  purchaser  under  an  invalid  and  irregular  attach- 
ment sale  could  not  be  collaterally  drawn  in  question,  observed:  "If,  after 
the  rendition  of  a  judgment  by  a  court  of  competent  jurisdiction,  and  after 
the  period  elapses  when  it  becomes  irreversible  for  error,  another  court  may, 
in  another  suit,  inquire  into  the  irregularities  or  errors  in  such  judgments, 
there  would  be  no  end  to  litigation,  and  no  fixed  established  rights.  A  judg- 
ment, though  unre versed  and  irreversible,  would  no  longer  be  a  final  adjudi- 
cation of  the  rights  of  litigants,  but  the  starting  point  from  which  a  new  litiga- 
tion would  spring  up.  Acts  of  limitation  would  become  useless  and  nuga- 
tory. Purchasers  on  the  faith  of  judicial  powers  would  find  no  protection. 
Every  right  established  by  a  judgment  would  be  insecure  and  uncertain,  and  a 
cloud  would  rest  upon  every  title." 

1  Rorer  Jud.  Sales,  §  130. 

'Baker  v.  Baker,  87  Ky.  461;  9  8.  W.  Rep.  382. 

1  Post,  "  Sheriff's  Sales,"  this  chapter;  Gould  v.  Sternberg,  128  111.  510;  21  N.  E. 
Rep.  628;   Turk  v.  Skiles,  38  W.  Va.  404.     This  exception  does  not  appear  to 
have  been  admitted  in  Baker  v.  Baker,  87  Ky.  461;  9  S.  W.  Rep.  382,  and  was 
denied  in  Yocum  v.  Foreman,  14  Bush  (Ky.),  494. 
12 


90  MARKETABLE  TITLE  TO  REAL  ESTATE. 

the  party  injured  by  the  error,  but  the  purchaser's  title  remains  in- 
tact,1 unless,  indeed,  it  is  apprehended  the  judgment  was  reversed 
upon  grounds  that  would  have  rendered  it  void  had  no  appeal  been 
taken.  It  would  seem  then  to  follow  from  these  elementary  prin- 
ciples that,  if  a  purchaser  at  a  judicial  sale  resists  a  confirmation  of 
the  sale  on  the  ground  of  errors  and  irregularities  in  the  proceed- 
ings, it  would  only  be  necessary  to  consider  whether  such  errors  and 
irregularities  were  of  a  kind  that  would  render  the  judgment  or 
decree  under  which  the  sale  was  made  absolutely  void,  or  voidable 

'Voorhis  v.  Bank  of  U.  S.,  10  Pet.  (U.  S.)  449.  Freeman  on  Judgments, 
§  484  (3d  ed.)  ;  Freeman  on  Void  Jud.  Sales,  p.  45  (3d  ed.)  :  Black  on  Judp- 
ments,  p.  320;  Rorer  Jud.  Sales  (2d  ed.),  §  132;  Burnett  v.  Hamill,  2  Sell.  A 
Lef.  577.  Voorhees  v.  Bank,  10  Pet.  (U.  S.)  449;  McGoon  v.  Scales,  9  Wall. 
(U.  S.)  23,  31.  Jackson  v.  Edwards,  22  Wend.  (X.  Y.)  493,  518.  Cockey  v. 
Cole,  28  Md.  276;  92  Am.  Dec.  684;  Benson  v.  Yellott,  (Md.)  24  Atl.  Rep. 
451.  Capehart  v.  Dowery,  10  W.  Va.  130.  Frederick  v.  Cox,  47  W.  Va.  14; 
34  S.  E.  Rep.  958.  Yocum  v.  Foreman,  14  Bush  (Ky.),  494;  Bailey  v.  Fanning 
Orphan  School,  (Ky.)  14  S.  W.  Rep.  908.  Stout  v.  Gully.  (Colo.)  22  Par. 
Rep.  954;  Cheever  v.  Minton,  (Colo.)  21  Pac.  Rep.  710.  Gould  v.  Sternberg, 
128  111.  510;  21  N.  E.  Rep.  628.  England  v.  Garner,  90  N.  Car.  197.  If  juris- 
diction of  a  cause  has  been  acquired  by  the  court  the  title  of  a  purchaser  at  a 
sale  therein  cannot  be  affected  by  the  fact  that  the  decree  in  pursuance  of  which 
the  sale  was  made  was  founded  on  insufficient  proof.  Bolgiano  v.  Cook,  19 
Md.  375.  A  purchaser  under  a  judgment  merely  erroneous  acquires  good  title ; 
otherwise,  if  the  judgment  be  void.  Bowers  v.  Chancy,  21  Tex.  363.  Mere 
errors  and  irregularities  in  the  proceedings  make  no  grounds  for  collateral 
attack.  Wilson  v.  Smith,  22  Grat.  (Va.)  493.  The  remedy  of  the  person 
injured  by  the  passing  of  title  under  a  judgment  that  has  been  reversed  for 
error  is  an  action  for  damages  against  those  at  whose  instance  the  sale  was 
made,  alleging  such  facts  as  will  show  that  the  plaintiff  is  entitled,  by  reason 
of  the  reversal,  to  what  he  has  been  deprived  of  by  the  erroneous  judgment. 
Hays  v.  Griffith,  85  Ky.  375;  11  S.  W.  Rep.  306;  3  S.  W.  Rep.  431.  The  case 
of  Sohier  v.  Williams,  1  Curt.  (C.  C.)  479,  affords  an  illustration  of  this 
principle.  The  sale  in  that  case  was  by  a  trustee  under  a  power  in  a  will, 
which  authorized  him  to  sell  when  a  majority  of  the  testatrix's  children 
should  advise  a  sale.  The  court  was  of  opinion  that  the  consent  of  the 
major  part  of  the  children  living  when  the  power  was  to  be  exercised  was 
sufficient,  but  considered  the  question  so  doubtful  that  but  for  the  fact  that 
all  parties  in  interest  were  before  the  court,  and  would  be  bound  by  a  decree, 
the  purchaser  would  not  have  been  compelled  to  complete  the  contract.  Had 
the  court  pronounced  an  erroneous  decree,  having  all  parties  in  interest 
before  it,  the  decree  would,  indeed,  have  been  subject  to  reversal  by  a  higher 
court,  but  the  title  of  the  purchaser  would  have  remained  undisturbed.  In 
Dunfee  v.  Childs,  45  W.  Va.  155;  30  S.  E.  102,  it  was  said  that  the  title  of 
the  purchaser  falls  with  the  reversal  of  a  decree,  1st,  where  he  is  a  party  to 
the  suit  with  an  interest  in  the  cause;  2nd,  where  the  decree  was  reversed 
for  want  of  necessary  parties:  and  3rd,  where  the  decree  reversed  is  that 
which  confirmed  the  sale  whether  he  was  a  party  to  the  suit  or  not. 


CAVEAT  EMPTOE.  91 

only.  In  the  former  event  it  is  conceived  that  the  purchaser  would 
be  excused  from  completing  the  purchase,  and  that  in  the  latter 
ovent  he  would  be  required  to  pay  the  purchase  money  and  accept 
a  conveyance.1  Thus,  if  the  court  decree  a  sale  of  testator's  lands 
in  pursuance  of  an  erroneous  construction  of  his  will,  all  parties  in 
interest  being  before  the  court,  it  is  apprehended  that  the  error 
would  be  no  objection  to  the  title  wherever  the  rule  that  the  rever- 
sal of  a  judgment  does  not  affect  the  rights  of  a  purchaser  under 
the  judgment  is  observed.  On  the  other  hand,  if  infants,  having  an 
interest  under  the  will,  have  not  been  brought  before  the  court  in 
the  manner  provided  by  law,  the  judgment  of  the  court  is  absolutely 
void  as  to  them,  and  the  land  in  the  hands  of  the  purchaser  being 
subject  to  their  demands  upon  their  arrival  at  majority,  it  would 
seem  clear  that  the  purchaser  would  be  relieved  from  his  bid.8  It 
Las  been  frequently  said  that  a  purchaser  at  a  judicial  sale  cannot 
question  the  regularity  of  the  proceedings  prior  to  the  decree  under 
which  he  purchased.3  This,  it  is  obvious,  means  only  errors  and 
irregularities  prior  to  the  sale  that  would  make  the  decree  voidable ; 
that  is,  reversible  on  appeal  or  in  some  direct  proceeding,  and  not 
errors  or  other  matters,  such  as  want  of  jurisdiction  or  fraud,  that 
would  make  the  decree  absolutely  void  and  open  to  collateral  attack, 
for  it  is  clear  that  the  purchaser  showing  such  want  of  jurisdiction 

'2  Jonea  on  Mortgages,  §  1647;  Freeman  Void  Jud.  Sales,  p.  45  (3d  ed.)  ; 
L'orer  Jud.  Sales,  p.  65.  Trapier  v.  Waldo,  16  S.  C.  276;  Bulow  v.  Witte,  :J 
S.  C.  323.  Wright  v.  Edwards,  10  Oreg.  307 ;  McCulloch  v.  Estes,  20  Oreg. 
349;  25  Pac.  724. 

•  In  Cline  v.  Catron,  22  Grat.  ( Va. )  378,  the  curator  of  an  idiot's  estate  and 
lands  brought  a  suit  for  a  sale  of  the  lands  and  reinvestment  of  the  proceeds, 
and  at  a  sale  under  decree  in  the  cause,  himself  purchased  the  lands.  The 
sale  was  confirmed,  in  violation  of  a  statute  which  provided  in  express  terms 
that  the  plaintiff,  the  curator,  should  not  be  admitted  as  a  purchaser.  It  was- 
afterwards  objected  that  title  derived  through  such  purchaser  was,  by  reason 
of  the  premises,  insufficient;  but  it  was  held  that  the  court,  having  had  juris- 
diction to  make  the  sale,  the  confirmation  thereof  was  mere  error,  for  which 
the  decree  might  have  been  reversed,  but  could  not  be  attacked  in  a  collateral 
proceeding. 

3  Cox  v.  Cox,  18  D.  C.  1.  A  more  accurate  expression  of  the  rule  is  found  in 
Sutton  v.' Schonwald,  86  N.  Car.  198,  204;  41  Am.  Rep.  455.  whore  it  is  said 
tliat  a  purchaser  who  is  no  party  to  the  proceeding  is  not  bound  to  look 
beyond  the  decree,  if  the  facts  necessary  to  give  the  court  jurisdiction  appear 
on  the  face  of  the  proceedings.  And  in  James  v.  Meyers,  41  La.  Ann.  1100. 
it  was  said  that  while  the  purchaser  is  not,  as  a  general  rule,  bound  to  look 
bevond  the  decree,  he  is  still  bound  to  see  that  the  court  had  jurisdiction. 


92  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

before  confirmation  of  the  sale  could  not  be  compelled  to  complete 
the  contract. 

The  cases  illustrating  the  proposition  that  a  judgment  merely  erro- 
neous cannot  be  made  the  subject  of  collateral  attack,  are  almost 
endless.  A  number  of  instances  have  been  given  in  the  notes  below, 
in  which  the  title  of  a  purchaser,  immediately  or  derivatively,  under 
a  judicial  sale,  has  been  called  in  question  on  the  ground  of  errors 
and  irregularities  in  the  proceedings,  and  in  which  the  objection  has 
been  held  untenable.1  It  must  suffice  to  say  here,  generally,  that 
insufficiency  of  the  evidence  to  sustain  the  judgment ;  error  of  the 
court  in  applying  the  law  to  the  facts  ;  want  of  parties,  where  the 
objection  is  made  by  one  bound  by  the  judgment ;  defects  or  irregu- 
larities in  the  process  or  service  of  process,  other  than  absolute  want 

1  In  Perkins  v.  Fairfield,  11  Mass.  227,  a  title  under  a  sale  by  administrators  by 
virtue  of  a  license  from  the  court,  was  held  good  against  the  heirs  of  the  intestate, 
although  the  license  was  granted  upon  a  certificate  from  the  judge  of  probate,  not 
authorized  by  the  circumstances  of  the  case.  A  purchaser  at  a  judicial  sale-can- 
not  object  to  the  title  on  the  ground  that  more  of  an  estate  was  sold  than  was 
necessary  to  satisfy  the  decree,  "  the  decree  being  a  sufficient  security  to  him,  as 
it  cannot  appear  but  that  it  was  right  to  sell  the  whole."  1  Sugd.  Vend.  68; 
Daniel  v.  Leitch,  13  Grat.  (Va.)  195,  210.  Irregular  service  of  summons  does  not 
affect  the  title  of  a  purchaser  at  a  judicial  sale.  Upson  v.  Horn,  3  Strobh.  Eq. 
(8.  C.)  108;  49  Am.  Dec.  633.  Failure  to  revive  a  suit  for  partition  in  the  name 
of  the  heirs  of  one  of  the  complainants  who  died  after  decree  for,  but  before  date 
of  sale  of  the  lands,  will  not  render  the  sale  void,  nor  impair  the  title  of  a  purchaser 
thereunder.  Schley  v.  Baltimore,  29  Md.  34.  In  Derr  v.  Wilson,  84  Ky.  14,  it 
was  contended  that  a  court  had  no  power  to  order  a  sale  of  a  homestead,  subject 
to  the  life  interest  of  the  debtor,  and  that  such  a  judgment  was  void  for  want  of 
jurisdiction,  but  it  was  held  that  while  the  court  erred  in  making  the  order,  it 
had  jurisdiction  of  the  parties  and  subject-matter,  and  that,  therefore,  the  judg- 
ment and  the  title  of  the  purchaser  thereunder  could  not  be  collaterally  attacked. 
Where  judgment  was  entered  for  the  full  amount  of  a  penal  bond  instead  of 
the  damages  for  a  breach  of  the  bond,  awarded  by  the  jury,  it  was  held  error,  but 
not  such  as  could  affect  the  title  of  a  purchaser  under  the  judgment.  Wales  v. 
Bogue,  31  111.  464.  A  decree  in  chancery  against  unknown  heirs  is  not  void 
because  no  affidavit  was  filed  that  they  were  unknown.  It  is  voidable  only  on 
appeal.  Hynes  v.  Oldham,  3  T.  B.  Mon.  (Ky.)  266;  Benningfield  v.  Reed,  9  B. 
Mon.  (Ky.)  102.  If  a  guardian  ad  litem  be  appointed  for  an  infant  and  he  actually 
answers,  a  decree  based  thereon  will  not  be  absolutely  void,  though  there  was  no 
actual  judicial  notice  of  the  suit  given  the  infant.  Bustard  v.  Gates,  4  Dana  (Ky.), 
429;  Bank  U.  8.  v.  Cochran,  9  Dana  (Ky.),  395;  Benningfield  v.  Reed,  8  B.  Mon. 
(Ky.)  100.  A  statute  providing  that  before  a  sale  is  ordered  in  partition  the  court 


CAVEAT  EMPTOR.  93 

of  service ;  legal  disability  of  a  party,  according  to  the  preponder- 
ance of  authority;  judgment  for  an  excessive  amount;  mistakes 
and  clerical  errors  in  the  rendition  or  entry  or  judgment,  or  other 
like  matters,  cannot  be  availed  of,  in  a  collateral  proceeding,  to 
invalidate  a  title  held  under  a  judicial  sale.1 

§  50.  Want  of  jurisdiction.  The  only  grounds,  it  seems,  upon 
which  a  judgment  of  a  court  of  record  can  be  attacked  in  a  collat- 
eral proceeding  are  want  of  jurisdiction  in  the  court  to  render  the 
judgment,  and  fraud,  mistake  or  surprise  in  the  procuration  of  the 
judgment.2  Jurisdiction  is  either :  (1)  Of  the  person  of  the  defend- 

shall  appoint  some  one  to  represent  infant  parceners,  is  directory  only,  and  a 
failure  to  appoint  such  a  person  does  not  deprive  the  court  of  jurisdiction  and 
render  its  judgment  void.  Robinson  v.  Redman,  2  Duv.  (Ky.)  82.  The  fact 
that  a  mortgagee,  before  proceeding  to  foreclose,  executes  a  bond  whose  con- 
dition does  not  conform  to  the  statute,  will  not  avoid  the  jurisdiction  of  the  court 
to  confirm  the  foreclosure  sale  nor  affect  the  title  of  a  purchaser  thereat.  Cockey 
v.  Cole,  28  Md.  276;  92  Am.  Dec.  684.  The  fact  that  commissioners  in  partition 
do  not  make  their  report  under  seal,  as  required  by  statute,  will  not  invalidate  a 
title  thereunder  upon  collateral  attack;  such  an  irregularity  could  be  taken  advan- 
tage of  only,  if  at  all,  by  proceedings  in  error.  Lane  v.  Bommelmann,  17  111.  95. 
Failure  to  direct  a  sale  in  inverse  order  of  alienation  is  not  such  error  as  affects  the 
jurisdiction  and  avoids  the  sale.  Jenks  v.  Quinn,  137  K  Y.  223;  33  N.  E.  Rep.  376. 
Where  the  record  in  a  proceeding  by  an  administrator  to  sell  decedent's  lands 
for  the  payment  of  his  debts,  affirmatively  shows  that  the  court  has  jurisdiction 
to  order  the  sale,  that  the  land  was  sold  under  order  of,  and  was  approved  by  the 
court,  and  that  a  deed  under  like  order  was  executed  to  the  purchaser,  it  was  held 
that  the  action  of  the  court,  being  in  the  nature  of  a  proceeding  in  rem,  could 
not,  though  abounding  with  errors  and  irregularities,  be  collaterally  impeached. 
The  failure  to  give  the  statutory  notice  by  citation  to  the  heirs,  and  the  absence 
of  proof  by  the  record  that  the  guardian  ad  litem  of  the  minor  heirs  accepted  the 
appointment,  or  that  he  filed  an  answer  denying  the  allegation  of  the  petition,  or 
that  the  commissioner  of  sale  gave  proper  notice  of  the  time  and  place  of  sale  — 
are  mere  irregularities,  which  might  furnish  good  grounds  of  reversal  on  error, 
but  which  could  not  invalidate  the  sale,  when  collaterally  attacked,  if  the  record 
affirmatively  showed  that  the  coxirt  had  jurisdiction.  Saltonstall  v.  Riley,  28  Ala. 
164;  65  Am.  Dec.  334. 

1  See  Black  on  Judgments,  §  261  et  seq. 

*Post,  §52.  The  court  must  have  jurisdiction  of  the  subject-matter  and  of 
the  parties  to  render  its  judgment  valid  on  collateral  attack.  Commercial  Bank 
v.  Martin,  9  Sm.  &  M.  (Miss.)  613.  "  Jurisdiction  may  be  defined  to  be  the  right 
to  adjudicate  concerning  the  subject-matter  in  a  given  case.  To  constitute  this 
there  are  three  essentials:  First,  the  court  must  have  cognizance  of  the  class  of 
cases  to  which  the  one  adjudged  belongs;  second,  the  proper  parties  must  be 


94  MARKETABLE  TITLE  TO  REAL  ESTATE. 

ant ; J  (2)  of  the  subject-matter  of  the  suit ;  (3)  of  the  res,  or  prop- 
erty in  contest.2  Want  of  jurisdiction  in  one  or  more  of  these 
respects  is  not  necessarily  fatal  to  the  judgment  of  the  court  if  it 
have  jurisdiction  upon  other  grounds.  Thus,  a  proceeding  against 
a  non-resident  defendant  by  which  it  is  sought  to  attach  his  lands 
within  the  territorial  jurisdiction  of  the  court  is  essentially  a  pro- 
ceeding in  rem,  and  the  fact  that  proceedings  by  publication  to 
bring  the  defendant  before  the  court  are  too  defective  for  that  pur- 
pose will  not  affect  the  validity  of  a  judgment  or  decree  for  the  sale 
of  the  land  and  the  title  of  a  purchaser  thereunder.3  The  converse 
of  the  foregoing  proposition,  that  is,  that  the  existence  of  jurisdic- 
tion upon  one  or  more  grounds  does  not  necessarily  validate  a  judg- 
ment if  jurisdiction  upon  another  ground  be  wanting,  is  also  true. 
Thus,  in  a  suit  for  the  administration  of  a  trust,  the  court  may  have 
jurisdiction  of  the  cause  of  action  and  of  the  persons  of  the  defend- 
ants, but  if  jurisdiction  of  the  res  be  wanting,  for  example,  if  the 

present;  and,  third,  the  point  decided  must  be,  in  substance  and  effect,  within 
the  issue."  Munday  v.  Vail,  34  N.  J.  Law,  422. 

'Cooper  v.  Reynolds,  10  Wall.  (U.  S.)  308,  316.  The  text  is  grounded  upon 
the  distinctions  formulated  by  Mr.  Justice  MILLER  in  this  case,  as  follows:  "  It  is 
as  easy  to  give  a  general  and  comprehensive  definition  of  the  word  jurisdiction 
as  it  is  difficult  to  determine  in  special  cases  the  precise  conditions  on  which  the 
right  to  exercise  it  depends.  This  right  has  reference  to  the  power  of  the  court 
over  the  parties,  over  the  subject-matter,  over  the  res  or  property  in  contest,  and 
to  the  authority  of  the  court  to  render  the  judgment  or  decree  which  it  assumes 
to  make.  By  jurisdiction  over  the  subject-matter  is  meant  the  nature  of  the 
cause  of  action  and  of  the  relief  sought;  and  this  is  conferred  by  the  sovereign 
authority  which  organizes  the  court,  and  is  to  be  sought  for  in  the  general  nature 
of  its  powers,  or  in  authority  specially  conferred.  Jurisdiction  of  the  person  is 
obtained  by  the  service  of  process,  or  by  the  voluntary  appearance  of  the  party 
in  the  progress  of  the  cause.  Jurisdiction  of  the  res  is  obtained  by  a  seizure 
under  process  of  the  court,  whereby  it  is  held  to  abide  such  order  as  the  court 
may  make  concerning  it.  The  power  to  render  the  decree  or  j  udgment  which 
the  court  may  undertake  to  make  in  the  particular  cause,  depends  upon  the 
nature  and  extent  of  the  authority  vested  in  it  by  law  in  regard  to  the  subject- 
matter  of  the  cause." 

*  Black  Judgmts,  §  240. 

1  Cooper  v.  Reynolds,  10  Wall.  (U.  S.)  308;  Voorhees  v.  Bank  of  U.  S.,  10  Pet. 
(TJ.  S.)  449.  These  are  leading  cases,  and  in  them  it  was  held  that  defects  and 
irregularities  in  the  affidavit  and  publication  of  notice  in  proceedings  by  attach- 
ments against  non-residents,  and  the  fact  that  the  record  does  not  show  compli- 
ance with  all  the  statutory  requisites  in  such  cases,  did  not  go  to  the  jurisdiction 
of  the  court,  and  did  not,  therefore,  render  the  judgment  in  the  cause  absolutely 


CAVEAT  EMPTOB.  95 

trust  subject  consist  of  lands  lying  in  another  State  and  consequently 
beyond  the  jurisdiction  of  the  court,  a  decree  of  the  court  directing 
a  sale  of  those  lands  will  be  absolutely  void.1  And,  generally,  it 
may  be  laid  down  as  a  rule  that  if  from  any  cause  or  in  any  respect, 
the  court  have  not  jurisdiction  to  render  the  judgment  or  decree 
under  which  a  judicial  sale  is  made,  a  purchaser  at  such  sale  will  not 
acquire  a  title  that  will  be  safe  from  the  attacks  of  parties  to  such 
judgment  or  of  those 'claiming  under  them.2  Collateral  attack  in  the 
sense  in  which  it  is  here  used  means,  of  course,  attack  in  a  collateral 
proceeding  by  some  one  who  is  bound  by  the  judgment,  either  as 
party  or  privy,  such  as  the  defendant  himself,  his  heirs  and  assigns. 
These  cannot  maintain  ejectment  against  the  purchaser  or  his  assigns 
unless  the  proceedings  were  absolutely  void  for  want  of  jurisdic- 
tion.8 But  the  title  of  a  purchaser  at  a  judicial  sale  may  always  be 

void,  though  they  were  errors  for  which  the  judgment  might  be  reversed.  Such 
proceedings  are  essentially  in  rem ;  the  judgment  or  decree  binds  nothing  but 
the  property  levied  upon,  and  the  court  acquires  jurisdiction  by  an  actual  levy, 
notwithstanding  the  defective  service  of  process  on  the  defendant.  In  Ohio 
several  cases  decide  that  a  statutory  proceeding  for  the  sale  of  a  decedent's 
lands  for  the  payment  of  his  debts  is  essentially  in  rem,  and  that,  though  the 
heir  was  required  to  be  made  a  party  to  the  proceeding,  the  failure  to  serve 
process  on  him  did  not  oust  the  court  of  its  jurisdiction  and  invalidate  the  title  of 
a  purchaser.  Sheldon  v.  Newton,  3  Ohio  St.  494,  506,  citing  Robb  v.  Irwin,  15 
Ohio,  689;  Snevely  v.  Lowe,  18  Ohio,  368.  An  attachment  against  a  non-resi- 
dent is  a  proceeding  in  rem,  and  after  the  return  of  the  officer  "levied  on 
the  property  of  the  defendant"  the  jurisdiction  has  fully  attached,  and  it 
becomes  a  cause  in  court.  Sutherland  v.  De  Leon,  1  Tex.  250;  46  Am.  Dec.  100. 
The  principle  established  by  the  case  of  Cooper  v.  Reynolds,  10  Wall.  (U.  S.) 
308,  and  stated  in  the  text  does  not  seem  to  have  been  recognized  in  all  of  the 
States.  Thus  in  New  York  it  has  been  held  that  a  judgment  founded  on  an  affi- 
davit for  an  order  of  publication  against  a  non-resident  which  fails  to  state  that 
the  defendant  could  not  be  found  within  the  State  "after  due  diligence"  is  void 
for  want  of  jurisdiction,  and  that  a  purchaser  thereunder  acquires  no  title. 
McCracken  v.  Flanagan.  127  N.  Y.  493;  141  N.  Y.  174;  36  N.  E.  Rep.  10. 

1  As  was  held  in  Contee  v.. Lyons,  19  D.  C.  207. 

'See  cases  cited  post,  "Doubtful  Title,"  ch.  31,  §  297,  notes;  Stansbury  v. 
Inglehart,  20  Dist.  Col.  134;  Frost  v.  Atwood,  51  Mich.  360;  Calvert  v.  Ash. 
47  W.  Va.  480;  35  S.  E.  887.  A  sheriff's  deed  under  a  judgment  void  on  its 
face  for  want  of  jurisdiction  does  not  even  make  a  cloud  on  the  title  which 
will  sustain  a  bill  quia  timet.  Holland  v.  Johnson,  80  Mo.  34.  A  purchaser 
at  an  execution  sale  under  a  void  judgment  for  want  of  service  of  process 
acquires  no  title.  Roberts  v.  Stowers,  7  Bush  (Ky.),  295. 

"  It  is  hardly  necessary  to  say  here  that  an  independent  action  or  proceeding  by 
a  party  to  a  judgement,  which  has  for  its  sole  object  the  vacation  of  the  judgment. 


96 


MARKETABLE  TITLE  TO  REAL  ESTATE. 


overthrown  by  one  not  a  party  or  privy  to  such  proceedings,  who 
can  show  a  better  title  in  himself ;  that  is,  a  title  paramount  to  that 
which  passed  under  the  judgment  or  decree  of  the  court.  A 
stranger  to  the  record,  however,  cannot,  of  course,  avail  himself  of 
want  of  jurisdiction  on  the  part  of  the  court,  or  of  any  error  or 
irregularity  in  the  proceedings,  whether  they  render  the  judgment 
absolutely  void  or  voidable  only.1 

Jurisdiction  of  the  person  consists  in  power  over  the  person  of 
the  defendant,  obtained  by  the  service  of  process  or  by  the  volun- 
tary appearance  of  the  defendant  in  the  progress  of  the  cause.  If 
the  court  have  not  jurisdiction  of  the  cause  upon  other  grounds,  a 
judgment  founded  upon  process,  insufficient  of  itself,  or  insufficiently 
executed,  to  bring  the  defendant  into  court,  is  absolutely  void.2 

upon  the  ground  of  fraud,  surprise  or  mistake,  is  not  a  "collateral  attack  "  in  the 
sense  in  which  that  expression  is  generally  used.  That  is  a  direct  attack,  and  is 
always  admissible;  otherwise  every  defendant  would  be  at  the  mercy  of  fraudu- 
lent officers  of  the  court  colluding  with  the  plaintiff  to  deprive  him  of  his  prop- 
erty. Thus  an  officer's  return  of  service  of  process  may  be  impeached  in  a 
direct  proceeding  after  judgment.  Black  on  Judgments,  §  288,  and  cases  there 
cited.  The  writer  does  not  remember  to  have  seen  in  any  of  the  books  a  definition 
of  the  terms  "direct  "  and  "  collateral  "  attack  as  used  in  reference  to  the  validity 
of  judgments,  probably  because  they  have  been  considered  too  plain  to  require 
definition.  "  Direct  attack  "  would  seem  to  consist  in  some  proceeding,  either 
by  motion,  petition,  appeal  or  writ  of  error  in  the  suit  in  which  the  judgment 
was  rendered,  or  to  consist  in  a  separate  suit,  usually  in  equity,  between  the 
original  parties  or  their  privies,  having  for  its  sole  object  the  reversal  or  vacation 
of  such  judgment  either  for  error,  fraud,  mistake  or  like  fatality  in  the  rendition 
or  procuration  of  the  judgment.  "  Collateral  attack  "  would  seem  to  consist  in 
an  attempt  to  show  the  invalidity  of  the  judgment  in  any  proceeding  between 
the  parties  or  their  privies,  which  does  not  have  for  its  sole  object  the  vacation  of 
the  judgment,  such,  for  example,  as  an  action  against  the  purchaser  for  the  pur- 
chase money,  ejectment  against  the  purchaser,  trespass  to  try  title  and  the  like; 
or  an  action  by  the  purchaser  to  recover  the  possession,  or  to  recover  back  the 
purchase  money  or  the  like.  This  seems  sufficiently  clear.  It  has  been  held, 
however,  that  ejectment  by  the  execution  debtor  against  a  purchaser  under  the 
execution  upon  the  ground  that  the  sale  and  proceedings  thereafter  are  void  is  a 
direct  and  not  a  collateral  attack.  Gue  v.  Jones,  25  Neb.  634;  41  N.  W.  Rep.  555. 
If  this  decision  be  sound,  the  question  what  is  and  what  is  not  "direct"  or  "  col- 
lateral "  attack  will  be  involved  in  much  obscurity  and  doubt. 

1  Swiggart  v.  Harber,  4  Scam.  (111.)  364;  39  Am.  Dec.  418. 

'Mercantile  Trust  Co.  v.  So.  Park  Res.  Co.,  (Ky.)  22  S.  W.  Rep.  314.  An 
invalid  order  of  publication  against  a  non-resident  heir  is  a  fatal  objection  to  a 
title  obtained  through  proceedings  in  which  such  order  was  made.  Menifee  v. 


CAVEAT  EMPTOR.  97 

Jurisdiction  of  the  subject-matter  consists  in  the  right  to  enter- 
tain the  suit,  having  regard  to  the  nature  of  the  cause  of  action  and 
of  the  relief  sought.  Thus,  if  the  court  should  take  jurisdiction  of 
a  cause  in  plain  violation  of  a  statute  which  prescribes  and  limits  its 
jurisdiction,  it  is  conceived  that  a  judgment  therein  rendered  would 
be  absolutely  void,  and  a  title  dependent  thereon,  such  as  a  pur- 
chaser could  not  be  required  to  take.1  A  court  may  be  said  to  have 
jurisdiction  of  the  subject-matter  of  a  suit  when  it  has  the  right  to 
proceed  to  determine  the  controversy  or  question  in  issue  between 
the  parties,  or  grant  the  relief  prayed.2  If  the  judgment  or  decree 
be  entirely  aside  from  the  issue  raised  in  the  record,  it  will  be  abso- 
lutely void  and  treated  as  a  nullity  in  a  collateral  proceeding.3  To 
this  subdivision,  namely,  want  of  jurisdiction  of  the  subject-matter 
must,  for  want  of  a  more  precise  classification,  be  referred  those 
cases  in  which  a  court  has  transcended  its  powers  in  any  respect 
other  than  a  mere  misconception  of  the  law,  or  misapplication  of 
the  law  to  the  facts.  Thus,  where  the  clerk  of  a  County  Court  has 

Jiarye,  (Va.)  4  S.  E.  Rep.  726.  If  the  court  take  jurisdiction  of  a  party  to  the 
suit  as  being  of  age,  he  cannot  attack  the  proceedings  collaterally  and  show  that 
he  was  an  infant.  He  must  assert  his  rights  in  some  direct  proceeding  to  vacate 
the  judgment  or  decree  that  has  been  rendered  against  him.  England  v.  Garner, 
90  N.  Car.  197. 

1  An  example  of  a  title  under  a  judicial  sale  void  for  want  of  jurisdiction  of  the 
subject-matter  is  found  in  the  case  of  Stansbury  v.  Inglehart,  20  D.  C.  134.  The 
statute  law  of  the  District  of  Columbia  permits  a  Chancery  Court  to  sell  the  lands 
of  an  infant  held  jointly  or  in  common  with  another.  It  was  held  that  this  did 
not  extend  to  a  case  in  which  the  interest  of  the  adult  tenant  was  in  possession 
and  that  of  the  infant  in  expectancy,  and  that,  therefore,  the  court  had  no  juris- 
diction to  decree  the  sale  of  an  infant's  estate  in  remainder,  and  that  a  purchaser 
thereunder  acquired  no  title. 

*  Language  of  the  court  in  Hope  v.  Blair,  105  Mo.  85;  16  S.  W.  Rep.  595. 

*This  rule  is  illustrated  by  the  case  of  Munday  v.  Vail,  34  N.  J.  Law,  418. 
This  was  a  suit  in  ejectment  against  a  purchaser  at  a  judicial  sale,  in  a  suit  to  set 
aside  a  voluntary  conveyance.  The  only  relief  prayed  in  the  last-named  suit  was 
that  the  conveyance  should  be  declared  void  as  to  the  plaintiff,  but  the  decree- 
went  further  and  declared  the  deed  to  be  void  even  as  between  the  parties  thereto. 
This  decree  was  declared  a  nullity  and  judgment  was  entered  for  the  plaintiff  in 
ejectment.  So,  also,  in  Corwith  v.  Grifflng,  21  Barb.  (N.  Y.)  9,  where  a  decree 
confirming  a  report  of  commissioners  in  partition,  who  had  in  their  allotment 
embraced  lands  not  embraced  in  the  pleadings,  was  held  null  and  void  as  to  such 
lands. 

13 


98  MABKETABLE  TITLE  TO  REAL  ESTATE. 

made  a  defective  certificate  of  acknowledgment  of  a  deed  by  a  mar- 
ried woman,  it  was  held  that  the  court  had  no  power  or  jurisdiction 
to  make  an  order  directing  the  clerk  to  execute  a  second  certificate, 
properly  setting  forth  the  facts,  and  that  a  title  depending  upon 
such  certificate  could  not  be  sustained.1  Care  must  be  taken,  how- 
ever, to  distinguish  between  cases  in  which  the  court  errs  in  assum- 
ing jurisdiction,  and  those  in  which  the  error  consists  in  a  misappli- 
cation of  the  law  to  the  facts  of  the  case. 

Jurisdiction  of  the  res  consists  of  power  over  property,  real  or 
personal,  sought  to  be  disposed  of  by  judgment  or  decree  in  the 
cause.  If  the  proceeding  is  essentially  in  rem,  jurisdiction  is 
obtained  by  a  seizure  under  process  of  the  court,  whereby  the  prop- 
erty is  held  to  abide  such  order  as  the  court  may  make  concerning 
it.8  It  is  also  necessary  that  property  sought  to  be  made  the  sub- 
ject of  a  decree  or  judgment  of  the  court  shall  lie  within  the  terri- 
torial jurisdiction  of  the  court.  A  court  of  one  State  has  no  power 
to  decree  a  sale  of  lands  lying  in  another  State,  and  the  title  of  a 
purchaser  derived  through  such  a  sale  is  bad.3  In  some  cases  it  has 
been  said  that  upon  collateral  attack  of  a  judgment,  if  the  record 
does  not  show  the  necessary  jurisdictional  facts,  their  existence  will 
be  presumed,  in  the  absence  of  evidence  to  the  contrary.*  It  may 
be  doubted  whether  this  is  an  accurate  statement  of  the  rule ;  the 
admission  of  extraneous  evidence  to  show  the  non-existence  of 

1  Elliott  v.  Piersol,  1  Pet.  (U.  8.)  328.  The  proceeding  in  which  the  court 
directed  the  amended  certificate  to  be  made  appears  to  have  been  altogether 
ex  parte.  The  order  was  made  on  the  motion  of  the  purchaser  about  ten  years 
after  the  original  certificate  was  made.  If  the  proceeding  had  been  inter  partet 
and  the  power  of  the  court  to  make  the  order  had  been  disputed,  it  would  be 
difficult  to  distinguish  the  case  from  one  in  which  the  court  errs  in  compelling  a 
married  woman  to  execute  a  deed,  or  from  any  other  case  in  which  it  errs  in 
decreeing  that  a  particular  thing  be  done.  To  the  principle  stated  in  the  text  is 
to  be  referred  also  the  case  of  Driggers  v.  Cassaday,  71  Ala.  529,  where  it  was 
held  that  a  probate  court  had  no  jurisdiction  to  order  a  sale  of  lands  for  delin- 
quent taxes. 

1  Black  on  Judgments,  §§  271,  273,  276;  Thompson  v.  Tolmie,  2  Pet.  (U.  8.) 
157;  Grignon  v.  Astor,  2  How.  (U.  8.)  319;  Florentine  v.  Barton,  2  Wall.  (U.  8.) 
308. 

•Rorer  Jud.  Sales,  §  58;  Contee  v.  Lyons,  19  D.  C.  207. 

4  Evans  v.  Ashby,  22  Ind.  15.  The  leading  case  of  Thompson  v.  Tolmie,  2 
Pet.  (U.  8.)  157,  decides,  as  we  have  seen,  that  extraneous  evidence  cannot  be 
received  to  show  want  of  jurisdiction. 


CAVEAT  EMPTOK.  99 

jurisdictional  facts  would  in  effect  neutralize  the  rule  that  where 
the  record  is  silent  as  to  such  facts  their  existence  will  be  conclu- 
sively presumed.  Evidence  dehors  the  record  cannot  be  admitted 
to  show  want  of  jurisdiction. 

Objections  to  title  founded  upon  want  of  jurisdiction  in  a  court 
to  enter  a  judgment  or  decree  under  which  the  title  is  derived  are 
materially  limited  and  restricted  by  two  rules  of  law,  which  it 
is  important  to  bear  in  mind.  The  first  rule  is,  that  if  jurisdiction 
do  not  affirmatively  appear  from  the  record  itself,  evidence  dehors 
the  record,  that  is,  extraneous  evidence,  will  not  be  received  to  show 
that  in  fact  the  court  had  no  jurisdiction.  It  will  be  conclusively 
presumed,  except  where  the  record  itself  shows  the  contrary,  that 
there  was  a  concurrence  of  all  things  necessary  to  give  the  court 
jurisdiction  according  to  the  maxim  omnia  praemmuntur  rite  et 
solenniter  esse  acta.1  Especially  will  such  a  presumption  be  made 

'Black  on  Judgments,  §§  271,  273,  276.  Thompson  v.  Tolmie,  2  Pet.  (U.  8.) 
157;  Grignon  v.  Astor,  2  How.  (U.  S.)  319;  Parker  v.  Kane,  22  How.  (U.  8.)  1; 
4  Wis.  1;  65  Am.  Dec.  483.  Duncanson  v.  Hanson,  3  App.  Cas.  (D.  C.)  361. 
Menefee  v.  Marye,  (Va.)  4  S.  E.  Rep.  726.  Where  a  statute  required  that 
notice  of  levy  of  an  execution  on  land  should  be  served  on  the  execution 
defendant  five  days  before  the  term  of  court  to  which  the  execution  must  be 
returned,  it  was  held  that  it  will  be  conclusively  presumed  from  rendition  of  the 
judgment  that  such  notice  had  been  given.  Burke  v.  Elliot,  4  Ired.  L.  (N. 
C.)  355;  43  Am.  Dec.  142.  Where  the  record  shows  that  process  was  ordered 
against  infant  defendants,  and  that  at  a  following  term  a  guardian  ad  litem 
was  appointed,  it  will  be  presumed,  on  collateral  attack,  that  such  defend- 
ants were  brought  regularly  into  court,  though  no  actual  service  of  pro- 
cess on  them  appears.  Thompson  v.  Doe,  8  Blackf.  (Ind.)  336;  Brack- 
enridge  v.  Dawson,  7  Ind.  383.  See,  also,  Homer  v.  State  Bank,  1  Ind.  130:  48 
Am.  Dec.  355.  A  title  under  a  decree  in  a  suit  for  specific  performance  against 
infant  defendants  will  not  be  declared  invalid  in  a  collateral  proceeding  on  the 
ground  that  the  record  does  not  show  notice  to  the  infants,  they  having  been  rep- 
resented by  guardian  ad  litem.  Horner  v.  State  Bank,  1  Ind.  130;  48  Am.  Dec.  355. 
If  the  record  shows  that  a  guardian  ad  litem  was  appointed  for  infant  defendants 
"on  motion,"  but  does  not  show  on  whose  motion,  it  will  be  presumed  that  the 
infants  were  present  in  court  when  the  motion  was  made,  and  that  they  had 
notice  of  the  proceeding.  Thompson  v.  Hart,  8  Blackf.  (Ind.)  336;  Horner  v. 
State  Bank,  1  Ind.  180;  48  Am.  Dec.  355;  Waltz  v.  Barroway,  25  Ind.  383.  The 
fact  that  the  record  of  a  sci.fa.  against  infant  heirs  to  revive  a  judgment  against 
the  ancestor  does  not  show  the  appointment  of  a  guardian  ad  litem  will  not  invali- 
date the  title  of  a  purchaser  under  the  judgment.  Evans  v.  Ashby.  23  Ind.  15. 
But  where  it  affirmatively  appears  from  the  record,  as  by  the  statement  con- 


300  MARKETABLE  TITLE  TO  REAL  ESTATE. 

when  the  record  is  very  ancient.1  The  second  rule  is  that  the 
recitals  of  fact  in  the  record  from  which  the  jurisdiction  of  the  court 
is  seen,  or  a  recital  of  jurisdictional  facts  contained  in  the  judgment 
itself,  cannot  be  contradicted  or  shown  to  be  untrue  in  any  collat- 
eral proceeding.  The  record  imports  absolute  verity.*  Thus,  to 
illustrate  the  first  rule,  in  a  case  in  which  the  law  provided  that  the 
lands  of  a  decedent  should  not  be  sold  for  partition  until  the  eldest 
child  had  arrived  at  majority,  the  court  refused  to  permit  one  who 

tained  in  an  agreed  case,  that  the  infants  were  not  served  with  process,  had  BO 
notice  of  the  proceedings,  and  were  not  in  court  during  their  pendency,  the 
judgment  will  be  held  void  on  collateral  attack.  Doe  v.  Anderson,  5  Ind.  38. 
In  Ford  v.  Walsworth,  15  Wend.  (N.  Y.)  449?  it  was  held  that  a  title  under  a 
sale,  in  pursuance  of  a  surrogate's  order,  might  be  collaterally  attacked  for  want 
of  jurisdiction  if  it  did  not  appear  that  an  account  of  the  personal  estate  and  of 
the  debts  of  the  decedent  was  presented  to  the  surrogate,  showing  a  necessity  for 
the  eale,  even  though  the  presentment  of  the  account  is  recited  in  the  order  of 
sale.  Regarding  a  Surrogate's  Court  as  a  court  of  general  and  unlimited  juris- 
diction in  probate  matters,  it  is  not  easy  to  reconcile  this  decision  with  the  rule 
that,  except  where  the  record  shows  the  contrary,  it  will  be  presumed  that  every- 
thing necessary  to  give  the  court  jurisdiction  had  transpired  at  the  time  the  order, 
judgment  or  decree  was  made. 

1  Shackelford  v.  Miller,  9  Dana  (Ky.),  273;  Baker  v.  Coe.  20  Tex.  428. 

*  Black  on  Judgments  (2d  ed.),  §  276;  Grignon  v.  Astor,  2  How.  (U.  S.)  tit, 
340,  leading  case.  In  Dorsey  v.  Kendall,  8  Bush  (Ky.),  294.  298,  it  was  held  that 
n  judgment,  upon  service  by  publication,  could  not  be  collaterally  attacked  upo» 
the  ground  that  the  order  of  publication  had  been  obtained  upon  a  false  affidavit 
or  a  false  return  of  the  sheriff.  A  judgment  subjecting  the  lands  of  a  non-resi- 
dent to  the  payment  of  delinquent  taxes,  which,  following  the  form  prescribed 
by  statute,  recites  that  "  notice  has  been  given  as  required  by  law,"  cannot  be 
attacked  in  a  collateral  proceeding,  though  the  statute  expressly  provides  that 
the  taxpayer  shall  be  notified  by  publication  in  a  newspaper  in  the  county  where 
the  land  lies.  Driggs  v.  Cassaday.  71  Ala.  529.  It  is  to  be  borne  in  mind  that 
while  recitals  ia  the  record  cannot  be  contradicted  in  a  collateral  proceeding,  they 
are  net  conclusive  upon  the  parties  if  founded  in  fraud  or  mistake.  Thus,  if  the 
officer  return  process  as  "  executed  on  the  defendant  A.,"  and  such  return  be 
fraudulent,  in  that  service  was  never  made,  or  erroneous,  in  that  the  officer  mis- 
took another  person  for  A.,  the  defendant  A.  cannot  show  these  facts  in  a  col- 
lateral proceeding,  such  as  ejectment  by  or  against  a  purchaser  at  a  sale  conse- 
quent upon  such  return ;  but  he  can  by  some  direct  proceeding,  either  by  motion, 
petition  or  other  proceeding  in  the  cause  in  which  the  sale  was  made,  if  still  pend- 
ing, or,  if  not  pending,  then  by  an  independent  action  or  suit  on  his  part  against  all 
persons  interested,  vacate  the  judgment,  orders  and  subsequent  proceedings  in 
the  cause  by  which  he  is  deprived  of  his  rights. 


CAVEAT  EMPTOI?.  101 

was  bound  by  a  decree  for  sale  in  a  suit  for  partition,  to  show  that 
the  eldest  child  had  not  reached  full  age  when  the  decree  was 
entered.1  To  illustrate  the  second  rule,  if  the  return  indorsed  by 
an  officer  on  original  process  in  a  suit  show  service  thereof  on  the 
defendant,  evidence  will  not  be  received  in  a  collateral  proceeding 
to  show  that  in  fact  the  return  is  false  and  that  process  was  never 
served  on  the  defendant,  nor  that  the  process  was  not  served  at  the 
time  stated  in  the  return,  nor  that  the  person  making  the  return 
was  not  the  proper  person  to  serve  the  process.2 

It  should  be  remarked  here  that  the  rule  as  to  presumption  of 
jurisdictional  facts,  where  the  records  do  not  disclose  them,  applies 
only  to  the  judgments  of  a  court  of  original,  general  jurisdiction. 
No  such  presumption  arises  in  favor  of  the  judgment  of  a  court  of 
special  or  limited  jurisdiction  ;  the  proceedings  of  such  a  court  must 
set  forth  the  facts  and  evidence  on  which  the  judgment  is  rendered.3 
What  is  and  what  is  not  a  court  of  general  jurisdiction  is  a  question 
which  cannot  be  inquired  into  here.  It  must  suffice  to  say  that,  as 
a  general  rule,  the  Superior  Courts  in  each  State,  as  distinguished 
from  those  courts  in  which  the  pleadings  are  oral,  such  as  a  Justice's 
Court,  are  courts  of  general  or  unlimited  jurisdiction ;  in  other 
words,  courts  in  which  the  great  mass  of  civil  rights  are  enforceable 
in  the  first  instance.4 

1  Thompson  v.  Tolmie,  2  Pet.  (U.  8.)  157. 

1  Burke  v.  Elliot,  4  Ired.  L.  (N.  C.)  355,  359;  43  Am.  Dec.  142. 

'Grignon  v.  Astor,  2  How.  Pr.  (U.  S.)  319,  341,  a  leading  case.  In  Young  v. 
Lorain,  11  111.  624,  636;  52  Am.  Dec.  463,  it  was  held  that  the  Circuit  Court  in 
that  State,  while  a  court  of  general  common-law  and  chancery  jurisdiction,  was 
a  court  of  special  or  limited  j  urisdiction  in  respect  to  its  statutory  power  to  order 
the  sale  of  infant's  lands,  and  that  a  proceeding  for  such  sale  which  did  not  show 
upon  its  face  that  all  the  personal  estate  of  the  infant  had  been  exhausted,  that 
being  by  statute  a  condition  precedent  to  the  power  to  order  the  sale,  was  abso- 
lutely void  and  afforded  no  protection  to  the  purchaser.  And  in  Strouse  v.  Dreu- 
nan,  41  Mo.  289,  it  was  held  that  the  statutory  jurisdiction  of  a  County  Court  to 
order  the  sale  of  an  infant's  lands  for  his  education  and  support  was  special  and 
limited,  and  that,  where  the  record  in  such  a  case  failed  to  show  that  the  sale  was 
made  upon  due  appraisement,  and  that  other  statutory  requisites  had  been  com- 
plied with,  an  order  confirming  the  sale  was  absolutely  void. 

4  In  this  connection  the  following  observation  from  Mr.  Black's  excellent  work 
on  Judgments  will  be  found  useful  (§  283):  "  In  all  the  States  there  are  courts 
having  original  jurisdiction  of  every  (or  nearly  every)  species  of  action  or  pro- 
ceeding known  to  the  common  law,  unlimited  in  respect  to  the  amount  or  the 


102 


MARKETABLE  TITLE  TO  REAL  ESTATE. 


The  question,  "  When  does  the  fact  that  the  court  had  no  juris- 
diction appear  upon  the  face  of  the  record  ? "  naturally  arises  here, 
and  presents  some  difficulty  when  considered  in  connection  with 
the  rule  that  in  a  case  in  which  jurisdictional  facts  do  not  appear 
from  the  record,  it  will  be  presumed  that  the  court  was  satisfied  of 
the  existence  of  those  facts  before  entering  a  judgment  or  decree. 
Suppose  a  plaintiff  in  partition  sets  out  A.,  B.  and  himself  as 
owners  of  the  property  to  be  divided,  but  fails  to  make  B.  a  party 
defendant,  and  process  issues  only  against  A.  It  is  plain  that  a 
•decree  in  the  cause  directing  a  sale  of  the  premises  would  be  abso- 
lutely void  as  to  B.,  and  a  purchaser  would  acquire  no  title  to  his 
interest.  Suppose,  however,  that  B.  was  made  a  party  and  that 
process  issued  against  him,  but  the  record  failed  to  show  whether  or 
not  the  process  was  ever  served.  Will  it  be  presumed  upon  collat- 
eral attack  that  B.  was  served  with  process,  and  that  such  fact  was 
made  to  appear  to  the  court  before  judgment  was  entered  ?  Does 
such  a  case  stand  upon  the  same  footing  as  one  in  which  the  court 
having  no  jurisdiction  over  the  subject-matter,  except  upon  a  certain 
•contingency,  such,  for  example,  as  the  arrival  of  a  party  in  interest 
at  majority,  a  court  in  which  the  judgment  is  attacked  will  presume 
that  such  contingency  had  transpired  and  that  the  court  of  first 
instance  was  advised  thereof  before  judgment  was  entered  ?  It  is 
conceived  that  no  such  presumption  would  be  made  in  favor  of  the 
judgment  or  decree,  and  that  the  rule  that  the  existence  of  juris- 
dictional facts  will  be  presumed  does  not  apply  in  cases  in  which  it 
is  the  practice  of  the  courts  to  enter  judgment  only  upon  docu- 
mentary evidence,  such  as  becomes  a  part  of  the  record,  that  juris- 
diction had  been  acquired  ;*  nor  in  any  case  in  which  it  is  provided 

character  of  the  controversy.  And  these  are  unquestionably  'superior'  courts 
within  the  meaning  of  the  rule.  And  the  same  is  true  of  courts  possessing  gen- 
eral equity  powers.  In  most  of  the  States  there  are  certain  tribunals  whose 
authority  is  wholly  derived  from  statutes,  who  are  authorized  to  take  cognizance 
only  of  a  particular  class  of  actions  or  proceedings,  or  to  act  only  in  certain  speci- 
fied circumstances,  whose  course  of  procedure  is  precisely  marked  out,  and  whose 
minutes  or  memorials  are  not  dignified  with  the  character  of  a  record.  And  these 
are  undoubtedly  'inferior'  courts  within  the  meaning  of  the  rule." 

1  See  Given  v.  McCarroll,  1  Sm.  &  M.  (Miss.)  351.  Laughman  v.  Thompson,  6 
Sm.  &  M.  (Miss.)  259.  Burke  v.  Elliott,  4  Ired.  L.  (N.  C.)  355,  358;  42  Am.  Dec. 
142,  where  it  was  said  that  a  judgment  against  one  not  a  party  is  void,  and  that 


CAVEAT  EMPTOR.  103 

by  statute  that  the  judgment  roll  shall  show  service  on  the  defend- 
ant where  judgment  by  default  is  rendered,1  nor,  generally,  where, 
ever  it  is  provided  that  the  record  shall  show  certain  jurisdictional 
facts.2 

It  follows  from  the  foregoing  principles  that  the  only  case,  apart 
from  fraud,  mistake  or  surprise,  in  which  a  judgment  or  decree  can 
be  declared  void  in  a  collateral  proceeding  is  one  in  which  the  fact 
that  the  court  had  no  jurisdiction  of  the  cause  appears  upon  the  face 
of  the  proceedings  in  which  the  judgment  or  decree  was  rendered. 
In  other  words,  a  judgment  will  be  void  on  its  face  only  where  the 
record  discloses  the  jurisdictional  facts,  and  the  facts  so  disclosed 
are  plainly  insufficient  to  have  conferred  jurisdiction.8  If  this  rule 
be  sound,  it  is  plain  that  the  cases  in  which  objection  to  the  title 
may  be  successfully  made  on  the  ground  of  defective  judicial  pro- 
ceedings through  which  the  title  is  derived,  will  be  reduced  to  a 
very  narrow  compass.  This  result  is  not  to  be  regretted.  The 
security  of  titles  to  real  estate  under  judgments  and  decrees  of  court 
is  a  matter  of  the  gravest  importance  to  the  public.  Besides,  the 

it  can  appear  that  he  is  a  party  only  when  the  record  states  an  appearance,  or  the 
official  service  of  process  on  the  person  or  his  property.  Citing  Armstrong  v. 
Harsham,  1  Dev.  (N.  C.)  187;  Irbey  v.  Wilson,  1  Dev.  &  Bat.  Eq.  (N.  C.)  568, 
and  Skinner  v.  Moore,  2  Dev.  &  Bat.  (N.  C.)  138.  In  Campbell  v.  McCahan, 
41  111.  45,  it  was  held  that  a  deeree  against  a  non-resident,  founded  upon  an 
affidavit  for  an  order  of  publication  which  failed  to  show  upon  its  face  that 
defendant  was  a  non-resident,  was  absolutely  void  and  open  to  collateral  attack. 
Where  it  was  provided  by  statute  that  an  order  for  the  sale  of  an  infant's  lands 
should  not  be  void  for  irregularity  in  the  proceedings  provided  certain  sub- 
stantial facts  appeared,  it  was  held  that  these  facts  must,  on  collateral  attack, 
appear  from  the  record  or  be  shown  by  extraneous  proof  to  exist,  and  that  the 
court  could  not  presume  that  they  had  been  made  to  appear  to  the  court  granting 
the  order.  Cooper  v.  Sunderland,  3  Iowa,  114;  66  Am.  Dec.  52.  In  Bannister 
y.  Higginson,  15  Me.  73,  it  was  held  that  if  an  officer's  return  of  a  levy  of  an  attach- 
ment on  land  do  not  show  by  whom  the  appraisers  of  the  land  were  chosen,  the 
proceedings  would  be  insufficient  to  pass  the  title.  In  Tederall  v.  Bouknight,  25 
So.  Car.  275,  it  was  intimated  that  that  if  the  record  showed  that  a  "  summons" 
had  been  issued  against  an  infant  defendant  the  court,  on  collateral  attack,  might 
presume  that  it  had  been  served,  though  actual  service  did  not  appear  from  the 
record. 

1  Hyde  v.  Redding,  74  Cal.  493,  501;  16  Pac.  Rep.  380. 

*  Thornton  v.  Mulquinne,  12  lo.  549;  Babbitt  v.  Doe,  4  Ind.  355,  temble. 

1  Black  on  Judgments,  §  278. 


104  MARKETABLE  TITLE  TO  REAL  ESTATE. 

rule  destroys  a  great  source  of  frivolous  objections  to  title,  and 
materially  lessens  the  labors  of  those  whose  duty  it  is  to  examine 
and  pass  upon  the  validity  of  titles.  The  foregoing  rules  may  be 
regarded  as  established  by  the  preponderance  of  judicial  decision  in 
America.  But  they  have  not  passed  without  dissent,  and  decisions 
in  conflict  with  the  principles  upon  which  they  have  been  rested 
may  be  found  in  several  of  the  States.  An  exhaustive  considera- 
tion of  this  subject  is  beyond  the  scope  of  this  work.  The  student 
will  find  the  numerous  cases  in  point  collected  in  a  recent  work 
upon  judgments,  in  which  the  whole  subject  of  collateral  attack  is 
philosophically  and  perspicuously  treated.1 

The  importance  of  these  rules  cannot  be  overestimated.  If  a  title 
derived  through  a  judicial  sale  may  be  overturned  by  matters  in 
pais  affecting  the  jurisdiction  of  the  court,  concerning  which  the 
most  cautious  purchaser  cannot  inform  himself,  there  would  be  no 
safety  in  purchasing  under  a  judgment  or  decree,  and  such  titles 
would  be  held  in  as  slight  estimation  as  those  dependent  upon  tax 
sales.  If  the  record  shows  affirmatively  want  of  jurisdiction  in  the 
court  to  render  the  judgment  or  decree,  the  purchaser  can,  by 
examination  of  the  record,  advise  himself  of  that  fact.  But  if  it 
should  be  required  of  the  purchaser  to  pursue  his  inquiries  outside 
of  the  record,  and  satisfy  himself  as  to  the  truth  and  adequacy 
thereof  by  the  statements  of  witnesses,  it  is  plain  that  the  examina- 
tion of  a  title  under  a  judicial  sale  would  involve  a  great  outlay  of 
time  and  money,  with  little  assurance  of  safety  in  the  result,  and 
would  probably  prevent  the  acceptance  of  such  titles,  unless  the 
consideration  should  be  substantially  reduced. 

§  51.  Title  as  affected  by  matters  and  things  occurring 
after  jurisdiction  has  attached.  It  is  obvious  that  a  title  under  a 
judicial  sale  may  be  declared  insufficient  upon  grounds  other  than 
want  of  jurisdiction  to  render  the  judgment  or  decree  under  which 
the  sale  was  made.  There  may  be  proceedings  in  a  cause  which  are 
no  part  of  the  original  res  judicata,  and  which  are  never  passed 
upon  until  drawn  in  question  in  some  subsequent  proceeding  involv- 
ing the  title  of  the  purchaser.2  Such,  it  is  conceived,  would  be  a 
conveyance  to  the  purchaser,  the  sale  not  having,  as  yet,  been  con- 

1 1  Black  Judgments,  ch.  12,  p.  297. 

'Upson  v.  Howe,  3  Strobh.  (8.  C.)  108;  49  Am.  Dec.  633. 


CAVEAT  EMPTOR.  105 

firmed.1  The  judgment  too  may  be  voidable  because  the  result  of 
fraud  or  mistake.  And  the  sale  itself  and  a  conveyance  in  pursu- 
ance thereof  may  confer  no  rights  upon  the  purchaser  because 
effected  by  fraudulent  collusion  with  the  officer  of  the  court  or  in 
other  ways  tainted  with  fraud.2  With  respect  to  sales  that  are  void 
for  want  of  confirmation,  it  is  to  be  observed  that  it  is  not  neces- 
sary, according  to  the  weight  of  authority,  that  the  record  shall 
show  a  confirmation  of  the  sale  in  express  terms  in  order  to  validate 
the  title  of  the  purchaser.8  A  decree  directing  the  distribution  of 
the  purchase  money  arising  from  the  sale  or  directing  that  a  deed  be 
made  to  the  purchaser  is  in  effect  a  confirmation  of  the  sale.4  Nor 
is  a  report  of  sale  by  the  officer  of  the  court  indispensable  to  the 
validity  of  the  title  if  it  otherwise  appears  from  the  record  that  a 
sale  was  made  and  that  it  was  confirmed  by  the  court.5 

§  52.  traud  as  ground  for  collateral  attack.  The  rights  of  the 
purchaser  at  a  judicial  sale,  where  fraudulent  misrepresentations 
respecting  the  title  were  made,  have  been  already  considered  in  this 
work.6  Fraud  which  exposes  the  title  of  the  purchaser  to  collateral 
attack  is  either  fraud  in  the  procuration  or  rendition  of  the  judg- 
ment or  decree  under  which  the  sale  is  made,  or  fraud  in  the  sale 
itself.  Fraud  in  the  procuration  of  a  judgment  always  opens  the 
judgment  to  collateral  attack  by  a  party  to  the  suit.  The  rule  that 
fraud  vitiates  everything  applies  to  judicial  records  as  well  as  to 
private  contracts.7  An  illustration  of  this  principle  is  afforded  by 
the  case  of  Mitchell  v.  Kintzer.8  This  was  an  action  of  ejectment 
against  a  married  woman  by  one  who  purchased  the  premises  in  dis- 

1  See  Freeman  Void  Jud.  Sales,  §  43. 

•In  Singletary  v.  Carter,  1  Bailey  L.  (8.  C.)  467;  21  Am.  Dec.  480,  a  levy  made 
by  a  deputy  sheriff  under  an  execution,  in  which  he  himself  was  plaintiff,  waa 
held  void,  and  a  sale  and  deed  in  pursuance  thereof  inoperative  to  vest  title  in 
the  purchaser. 

» Freeman  Void  Jud.  Sales,  §  44;  Rorer  Jud.  Sales,  §§  3,  16,  107,  129. 

4  Agun  v.  Shannon,  (Mo.)  15  S.  W.  Rep.  757. 

•Harrison  v.  Harrison,  1  Md.  Ch.  831. 

•Ante,  §  48. 

T  Fennors  Case.  Co.  Rep.  pt.  8.  p.  77;  Vandever  v.  Baker,  18  Pa.  St.  121,  Mtor; 
Wilson  v.  Smith,  22  Grat.  (Va.)  493;  Lancaster  v.  Wilson,  27  Qrat.  (Va.)  624. 

•5  Pa.  St.  216;  47  Am.  Dec.  408.  See,  also,  Rhoads  v.  Selin,  4  Wash.  C.  C.  (U. 
8.)  715. 

U 


106  MARKETABLE  TITLE  TO  REAL  ESTATE. 

pute  at  an  execution  sale  against  the  husband.  The  premises  con- 
sisted of  the  share  of  the  wife  in  her  deceased  father's  estate,  which 
the  administrator  of  that  estate,  fraudulently  colluding  with  the 
husband,  returned  as  having  been  sold  to  the  husband,  there  having 
been  in  fact  no  sale,  and  no  purchase  money  paid  by  the  husband. 
There  was  nothing  on  the  face  of  the  records  of  the  Orphans' 
Court,  ordering  and  confirming  the  sale,  to  impeach  the  validity 
thereof ;  but,  upon  the  principle  that  fraud  vitiates  all  acts,  judicial 
as  well  as  others,  judgment  was  rendered  for  the  wife,  the  defend- 
ant. Generally,  it  may  be  said  that  if  a  purchaser  at  a  judicial  sale 
buy  with  knowledge  of  fraud  in  the  proceedings  anterior  to  the  sale, 
he  cannot  hold  the  property  as  against  the  claims  of  a  party  to  the 
suit  who  was  injured  by  the  fraud.1  But,  of  course,  a  purchaser, 
without  notice  from  a  purchaser  with  notice  of  the  fraud,  would  be 
protected. 

Fraud  in  making  a  judicial  sale,  other  than  fraudulent  representa- 
tions as  to  the  title,  exposes  it  to  collateral  attack  at  the  suit  of  the 
party  injured.2  It  sometimes  happens  that  the  officer  making  the 
sale  either  directly  purchases  the  property  himself,  or  indirectly 
through  some  one  whom  he  has  procured  to  bid.  Such  a  sale  is 
prima  facie  fraudulent  and  conveys  no  title  as  against  those  in 
whose  behalf  the  sale  was  made.  So,  also,  where  the  officer  fraudu- 
lently colludes  with  the  purchaser  in  conducting  the  sale  in  such  a 
manner  that  the  property  is  sold  for  less  than  its  value,  or  the  par- 
ties in  interest  otherwise  deprived  of  their  rights.3  It  is  a  fraud 

'Morris  v.  Gentry,  89  N.  Car.  248,  252,  where  the  point  was  obiter;  citing, 
however,  University  v.  Lassiter,  83  N.  Car.  38;  Ivey  v.  McKinnon,  84  N.  Car. 
651;  Sulton  v.  Schonnald,  86  N.  Car.  198;  41  Am.  Rep.  455;  Gilbert  v.  James,  86 
N.  Car.  244. 

*  Freeman  Void  Jud.  Sales,  §  40.  In  Sumner  v.  Sessions,  94  N.  Car.  371,  a 
distinction  was  drawn  between  cases  in  which  the  officer  selling  purchased 
directly  at  his  own  sale,  and  those  in  which  he  purchased  from  a  purchaser  at 
his  own  sale,  holding  that  in  the  former  case  the  sale  is  a  nullity  and  open  to 
collateral  attack,  and  in  the  latter  case  that  the  sale  could  only  be  vacated  by 
some  direct  proceeding  instituted  for  that  purpose.  See,  also,  Rutherford  v. 
Stamper,  60  Tex.  447;  Dodd  v.  Templeman,  76  Tex.  57;  13  S.  W.  Rep.  187; 
Fisher  v.  Wood,  65  Tex.  200.  McLaurin  v.  McLaurin,  106  N.  C.  331;  10  S.  E. 
Rep.  1056. 

1  Freeman  Void  Jud.  Sales,  §  40.  Patton  v.  Thompson,  2  Jones  (N.  Car.),  285; 
67  Am,  Dec.  222.  Even  though  the  purchaser  gives  a  fair  price.  Lancaster  v. 


CAVEAT  EMPTOR.  107 

also  if  the  commissioner  or  officer  making  the  sale  himself  purchases 
the  land ;  but  a  party  to  the  suit,  having  it  in  his  power  to  resist  the 
confirmation  of  such  a  sale  and  failing  to  do  so,  will  not,  after  the 
lapse  of  a  considerable  time,  be  permitted  to  file  a  bill  attacking 
the  sale.1  It  is  common  to  except  cases  of  fraud,  mistake  and  surprise 
in  laying  down  the  rule  that  the  title  of  a  purchaser  at  a  judicial 
sale  cannot  be  overturned  by  attacking  in  a  collateral  proceeding 
the  judgment  under  which  the  sale  was  made.  It  is  clear  that  a 
judgment  founded  in  fraud  or  mistake  is  not  conclusive  upon  the 
injured  party.  But  if  land  be  purchased  by  a  party  to  fraudulent 
proceedings  under  which  the  sale  was  had,  or  by  a  party  to  a  judg- 
ment or  decree  founded  upon  mistake,  it  seems  that  the  sale  should 
be  vacated  in  some  direct  proceeding  between  the  parties  rather 
than  by  way  of  collateral  attack.2  It  has  been  so  held  in  a  case  in 
which  certain  lands  were  embraced  in  a  decree  for  sale  by  mistake.8 
The  right  of  a  purchaser  at  a  void  judicial  sale  in  a  proceeding  to 
enforce  a  lien  or  incumbrance,  or  to  subject  property  to  the  pay- 
ment of  a  debt  or  charge,  to  be  substituted  or  subrogated  to  the 
benefit  of  such  debt  or  lien  that  has  been  satisfied  from  the  fund 
arising  from  such  sale  has  been  frequently  declared.4 

Wilson,  27  Grat.  (Va.)  624.  Merwin  v.  Smith,  1  Gr.  Ch.  (N.  J.)  182;  Hodgson  v. 
Farrell,  2  McCart.  (N.  J.)  788.  If  a  purchaser  at  a  judicial  sale  participates  in  a 
fraud  in  making  the  sale  that  fact  may,  in  a  collateral  proceeding,  be  shown  in 
avoidance  of  the  sale.  Griffith  v.  Bogert.  18  How.  (U.  S.)  158. 

1  Walker  v.  Ruffner,  32  W.  Va.  297;  9  S.  E.  Rep.  265;  Newcomber  v.  Brooks, 
16  W.  Va.  32. 

•  England  v.  Garner,  90  N.  Car.  197;  Hare  v.  Holloman,  94  N.  Car.  14;  Sumner 
v.  Sessions,  94  N.  Car.  871;  Syme  v.  Trice,  96  N.  Car.  243;  1  S.  E.  Rep.  480; 
Tyson  v.  Belcher,  102  N.  Car.  112;  9  S.  E.  Rep.  634. 

•Jones  v.  Coffey,  97  N.  Car.  347;  2  S.  E.  Rep.  165.  This  was  an  action  to 
recover  lands  sold  by  mistake  under  decree  in  a  cause  to  which  the  now  plaintiffs 
were  parties.  The  court  said:  "The  plaintiffs  contend  that  if  the  land  they  seek 
to  recover  by  this  action  was  embraced  by  and  sold  under  the  decree  in  the  action 
mentioned,  it  was  so  by  mistake  and  misapprehension.  It  appears  that  that 
action  is  not  yet  determined.  If  so,  the  plaintiffs  ought  to  seek  their  remedy  if 
they  have  any  in  it;  if  it  is  determined,  then  by  an  independent  action."  Loyd 
v.  Malone,  23  111.  43;  74  Am.  Dec.  179;  Keuchenbeiser  v.  Beckert,  41  111.  172; 
Lloyd  v.  Kirkwood,  112  111.  829,  338;  Griswold  v.  Hicka,  (111.)  24  N.  E.  Rep.  68. 

«Hudgin  v.  Hudgin,  6  Grat.  (Va.)  320;  52  Am.  Dec.  124;  Haymond  v.  Cam- 
den,  22  W.  Va.  180;  Hull  v.  Hull,  (W.  Va.)  18  S.  E.  Rep.  49.  In  this  case  the 
court,  by  BRANNON,  J.,  after  declaring  the  rule  stated  in  the  text,  continued: 


108  MARKETABLE  TTTT.E  TO  RFAL  ESTATE. 

§  53.  SATYRS  BY  EXECUTOBS  AND  A DMTTTISTRATOBS.  Sale 
in  pursuance  of  power  in  wilL  Sales  by  executors  and  adminis- 
trators are  of  two  kinds :  (1)  Sales  under  a  power  contained 
in  a  decedent's  will,  and  (2)  Sales  under  judicial  authority  for 
the  payment  of  the  decedent's  debts.  Sales  of  the  first  kind, 
that  is,  sales  in  pursuance  of  a  power,  do  not  require  judicial 
sanction  in  the  first  instance,  nor  confirmation  after  they  have  been 
made ;  the  legal  title  is  vested  in  the  executor  or  administrator  by 
the  will,  and  his  authority  to  sell  is  complete  as  soon  as  the  formal- 
ities of  the  law  in  respect  to  probate  of  the  will  and  qualification  of 
the  personal  representative  have  been  complied  with,  and  the  con- 
tingencies provided  for  in  the  will  have  transpired.1 

It  has  been  broadly  stated  that  the  maxim  caveat  emptor  applies 
in  all  of  its  strictness  to  sales  bv  executors  and  administrators.8  This 

w 

is  true  enough  in  respect  to  the  validity  of  legal  proceedings  whence 
the  power  is  derived,  and,  perhaps,  in  respect  to  restrictions  or  limi- 
tations upon  the  power  in  the  testator's  will.  But  no  reason  is  per- 
ceived why,  in  case  the  testator  himself  had  no  title  to  the  lands,  a 
purchaser  under  a  power  contained  in  the  will,  should,  while  the 
contract  is  executory,  be  compelled  to  pay  the  purchase  money  with 
the  certainty  of  eviction  before  him.  At  least,  it  would  seem,  that 
in  such  a  case  the  maxim  caveat  emptor  should  be  confined  to  cases 
in  which  the  defects  of  title  were  such  as  the  purchaser  might  have 
discovered  by  the  exercise  of  ordinary  diligence,  and  that  in  this 
respect  a  distinction  may  be  made  between  cases  in  which  the  sale 
is  made  under  a  power  and  those  in  which  it  is  made  under  a  judicial 
license.  This  view  is  supported  by  the  leading  case  of  Garnett  v. 
Macon,8  in  which  a  sale  of  lands  was  made  by  an  executor  under  a 
power  in  the  will  for  the  payment  of  debts.  It  was  held  that  the  execu- 
tor could  not  compel  specific  performance  of  the  contract  unless  he 

"Principles  of  jtrstice  demand  this,  and  courts  of  equity  have  raised  up  this 
principle,  a  being  of  their  creation  called  '  substitution,'  unknown  to  the  common- 
law  forums,  to  accomplish  the  ends  of  justice,  and  I  know  of  no  more  signal 
instance  to  exemplify  the  disposition  as  well  as  the  power  of  equity  to  adopt 
means  to  accomplish  right  than  this  of  substitution  accorded  purchasers  under 
void  proceedings  whose  money  has  gone  to  satisfy  liens  good  against  the  debtor." 

1  Woerner  Law  of  Administration,  §  464 ;  Freeman  Void  Jud.  Sales,  §  9. 

*Woerner  Law  of  Administration  §  484. 

1 2  Brock.  (C.  C.)  213.  Also  the  case  of  Altgelt  v.  Mernitz  (Tex.  Civ.  App.) , 
83  S.  W.  891. 


CAVEAT  EMI'TOR.  109 

was  able  to  convey  a  clear  title.  The  opinion  was  by  Chief  Justice 
MARSHALL,  and  there  was  no  adversion  to  the  maxim  caveat  emptor. 
A  sale  by  an  administrator  or  executor,  directly  or  indirectly  to 
himself,  acting  under  a  power  in  the  will,  is  void.1  But,  of  course, 
the  sale  must  be  vacated  by  some  appropriate  proceeding  for  that 
purpose.  It  has  been  seen  that*  such  a  sale  under  judicial  license  is 
in  some  of  the  States  a  nullity,  absolutely  void,  and  open  to  col- 
lateral attack,  while  in  others  a  sale  by  the  officer  indirectly  to  him- 
self, though  fraudulent,  must  be  vacated  in  some  direct  proceeding 
and  cannot  be  shown  in  a  possessory  action  by  or  against  the 
purchaser.2  The  distinction,  for  the  purposes  of  this  work,  is  com- 
paratively unimportant,  for  we  are  here  considering  defects  for 
which  a  purchaser  may  reject  a  title  ;  and,  to  a  purchaser  from  an 
administrator  who  has  made  a  fraudulent  sale  to  himself,  it  is  imma- 
terial whether  the  title  is  liable  to  be  attacked  in  a  collateral  pro- 
ceeding or  in  a  direct  proceeding,  since  in  either  case,  if  charged 
with  notice  of  the  fraud,  he  would  lose  the  estate. 

§  54.  Sales  in  pursuance  of  judicial  license.  The  maxim 
caveat  em/ptor  has  been  rigorously  applied  in  most  of  the  American 
States  to  sales  by  executors  and  administrators  under  judicial 
authority,  whether  in  respect  to  inherent  defects  in  the  title  or  to 
those  which  result  from  errors  and  irregularities  in  the  proceedings 
whence  the  authority  to  sell  is  derived.  The  sale,  like  a  tax  sale, 
is  of  the  title  such  as  it  is,  good  or  bad,  and  the  purchaser  is  conclu- 
sively presumed  to  have  purchased  with  that  understanding.8  This 

1  Daviea  v.  Hughes,  (Va.)  11  8.  E.  Rep.  488. 

'Ante,  §  52. 

•  Woerner  Law  of  Adm.  §  484;  Rorer  on  Jud.  Sales  (2d  ed.),  §  476;  Freeman 
Void  Jud.  Sales,  §  48;  Schouler  on  Eire.  (2d  ed.)  §  515.  Worthington  v. 
McRoberts,  9  Ala.  297;  Corbett  v.  Dawkins,  54  Ala.  282;  Burns  v.  Hamilton, 
33  Ala.  210;  70  Ara.  Dec.  570;  Boiling  v.  Jones,  67  Ala.  508.  Probate  sales, 
however,  are  subject  to  confirmation  by  the  court  in  this  State.  See  above  cases. 
Colbert  v.  Moore,  64  Ga.  502;  Jones  v.  Warnock,  67  Ga.  484.  Bingham  v. 
Maxey,  15  111.  295;  Moore  v.  Neil,  39  111.  256;  89  Am.  Dec.  303;  McConnell  v. 
Smith,  39  111.  279;  Wing  v.  Dodge,  80  111.  564;  Tilley  v.  Bridges,  105  111.  336. 
Ripley  v.  Kepler,  94  Ind.  308.  Hale  v.  Marquette,  69  Iowa.  376.  Short  v. 
Porter.  44  Miss.  533;  Hutchins  v.  Brooks,  31  Miss.  430.  Bashore  v.  Whisler.  3 
Watts  (Pa.),  490;  Fox  v.  Mensch,  3  W.  &  8.  (Pa.)  444;  King  v.  Gunnison,  4  Pa. 
St.  172;  Sackett  v.  Twining,  18  Pa.  St.  199;  57  Am.  Dec.  599.  Lynch  v.  Baxter, 
4  Tex.  431;  51  Am.  Dec.  735;  Williams  v.  McDonald.  13  Tex.  322;  Rice  v.  Burnett, 


110  MARKETABLE  TITLE  TO  KEAL  ESTATE. 

rale  has  been  carried  so  far  that  it  has  even  been  held  that  the 
administrator  is  under  no  obligation  to  disclose  incumbrances  on  the 
estate  or  defects  in  the  title  that  are  known  to  him,1  unless  it  be  a 
want  of  title  resulting  from  his  own  act  or  that  of  the  intestate.* 
In  most  of  the  States  it  seems  that  probate  sales  are  not  reported 
to  the  court  for  confirmation,  and,  therefore,  cannot  be  regarded  as 
judicial  sales.  The  authority  to  sell  is  granted  by  the  court,  but 
thereafter  the  court,  with  respect  to  the  sale,  \s,functus  ojficii.*  But 
in  other  States  it  seems  that  such  sales  are  reported  to  court  for 
confirmation.4  Where  that  is  the  case,  no  reason  is  perceived  why 
the  purchaser  should  not  be  permitted  to  resist  confirmation  on  the 
ground  that  the  title  is  defective,  as  he  may  do  in  the  case  of  an 
ordinary  judicial  sale.  A  proceeding  on  behalf  of  an  administrator 
to  sell  the  lands  of  his  intestate  for  distribution  on  the  ground  that 
it  cannot  be  equitably  divided  among  the  heirs,  is  a  proceeding  in 
rem,  and  a  sale  made  under  a  decree  in  such  a  case  is  a  judicial  sale 
to  which  the  doctrine  caveat  emptor  applies.  The  purchaser  buys 
at  his  peril,  and  if  there  be  no  fraud  or  mistake  or  ignorance  of  any 
material  fact  he  must  pay  the  purchase  money  after  confirmation  of 
the  sale,  even  though  he  gets  no  title.5  If  the  purchaser  from  an 

39  Tex.  177.  A  harsh  application  of  the  rule  stated  in  the  text  will  be  found  in  the 
case  of  Boiling  v.  Jones,  67  Ala.  508,  where  a  widow,  who  purchased  the  lands 
of  her  deceased  husband  at  a  sale  by  his  administrator,  was  compelled  to  pay  for 
a  part  to  which  she  was  entitled  as  a  homestead.  STONE,  J. ,  dissenting.  The 
rule  applies  whether  the  sale  by  the  administrator  be  public  or  private.  Kirk- 
land  v.  Wade,  61  Ga.  478. 

1  Thompson  v.  Hunger,  15  Tex.  523;  65  Am.  Dec.  176;  Hawpe  v.  Smith,  25 
Tex.  Supp.  448.  See,  also,  Loudon  v.  Robertson,  5  Bl.  (Ind.)  276. 

*In  Walton  v.  Reager,  20  Tex.  103,  110,  it  was  said  that  if  the  administrator 
should  sell  the  land  a  second  time  without  disclosing  the  prior  sale  it  would  be  a 
fraud  'upon  the  purchaser  and  would  vitiate  the  second  sale.  The  court  added 
that  it  would  be  equally  a  fraud  upon  a  purchaser  from  the  administrator  if  there 
had  been  a  prior  sale  by  the  intestate,  whether  the  same  was  known  or  unknown 
to  the  administrator,  if  the  purchaser  had  no  knowledge  of  it,  thus  withholding 
application  of  the  maxim  caveat  emptor  from  these  cases  in  which  the  want  of 
title  springs  from  the  fault  or  wrongful  act  of  the  administrator,  and  distinguish- 
ing between  such  cases  and  those  in  which  the  title  was  originally  defective. 
But  see  Ward  v.  Williams,  45  Tex.  617,  where  this  dictum  is  overruled. 

•Smith  v.  Arnold,  5  Mason  (U.  S.),  414,  420. 

4  See  Rorer  on  Jud.  Sales,  §  362;  2  Woerner  Am.  Law  of  Admn.  §  1059. 

•Qarrettv.  Lynch,  45  Ala.  204;  Bums  v.  Hamilton,  83  Ala.  210;  70  Am.  Dec.  570. 


CAVEAT  EMPTOR.  Ill 

administrator  or  executor  has  received  a  conveyance  it  is  immaterial, 
with  respect  to  his  asserted  right  to  detain  the  purchase  money  on 
failure  of  the  title,  whether  the  conveyance  was  with  or  without 
covenants  for  title.  If  the  conveyance  was  with  covenants  they  do 
not  bind  the  estate,  and  consequently  the  breach  of  them  affords  no 
counterclaim  to  an  action  for  the  purchase  money.1  And  if  the 
conveyance  was  without  covenants  for  title  the  purchaser  would,  on 
general  principles,  be  without  relief. 

§  55.  Fraud  on  the  part  of  the  representative.  Fraud  in  a 
sale  by  a  fiduciary  or  ministerial  officer  in  representing  that  the  title 
is  good,  or  that  there  are  no  incumbrances  on  the  property,  when  he 
knows  the  contrary,  has  been  distinguished  from  fraudulent  collu- 
sion by  which  the  sale  is  effected,  or  any  other  fraud,  not  in  respect 
to  the  title,  which  avoids  the  sale.  Fraudulent  misrepresentations 
as  to  the  title  or  as  to  incumbrances  cannot,  it  has  been  held  in  some 
cases,  entitle  the  purchaser  to  detain  or  recover  back  the  purchase 
money  from  the  estate ;  they  merely  give  the  purchaser  a  right  of 
action  against  the  fraudulent  vendor  in  his  individual  capacity.2 
Other  cases  hold  that  the  administrator's  representations  as  to  the 
title  are  immaterial  and  irrelevant,  and  that  if  the  purchaser  chooses 
to  allow  himself  to  be  influenced  by  them,  he  has  no  remedy  against 
the  estate,  either  by  way  of  recovery  back  or  detention  of  the  pur- 
chase money.3  A.  fortiori,  the  purchaser  cannot  be  relieved  if  the 
representation  was  made  in  good  faith.4  Nor  is  the  administrator 
in  any  case,  it  seems,  bound  to  disclose  imperfections  in  the  title 
and  incumbrances  upon  the  estate.  Mere  silence  on  the  part  of  the 
administrator  in  these  respects  will  not  be  construed  to  be  a  fraud 
on  the  purchaser.5  An  administrator  has  no  right  to  agree  that  the 

1  Hale  v.  Marquette,  69  Iowa,  376;  Mitchell  v.  McMullen,  59  Mo.  252. 

1  Colbert  v.  Moore,  64  Ga.  502;  Ga.  Code,  §  2622.  Riley  v.  Kepler,  94  Ind.  308. 
Hutchins  v.  Roberts,  31  Miss.  430.  But  see  Hawpe  v.  Smith,  25  Tex.  Supp.  448, 
and  Walton  v.  Reager,  20  Tex.  103. 

3  Fox  v.  Mensch,  3  W.  &  8.  (Pa.)  444.     Even  though  the  representation  by  the 
administrator  was  fraudulently  made.     Ripley  v.  Kepler,  94  Ind.  308. 

4  Coombs  v.  Lane,  17  Tex.  280. 

•Woerner  Am.  Law  of  Admn.  §  484;  Wilson  v.  White,  2  Dev.  Eq.  (N.  Car.) 
29.  It  seems,  however,  that  the  purchaser  in  this  case  knew  of  the  objection  to 
the  title,  which  was  an  outstanding  right  of  dower.  Thompson  v.  Munger,  15 
Tex.  523;  65  Am.  Dec.  176;  Hawpe  v.  Smith,  25  Tex.  Supp.  448. 


112  MARKETABLE  TITLE  TO  HEAL  ESTATE. 

sale  shall  be  free  from  incumbrances,1  and  if  an  incumbrance  exist, 
the  purchaser  must  take  subject  thereto.  Nor  can  he  refuse  to  pay 
the  purchase  money  on  the  ground  that  the  title  was  advertised  to 
be  good.2  Nor  has  the  administrator  a  right  to  represent  that  the 
title  is  good.  He  should  offer  for  sale  merely  such  right,  title  or 
interest  in  the  estate  as  his  testator  or  intestate  may  have  had.8  If 
there  is  a  cloud  upon  the  title  he  cannot  even  apply  to  a  court  of 
equity  to  remove  it.4  But  the  better  opinion  seems  to  be  that  if  the 
administrator  fraudulently  represent  that  the  title  is  good  for  the 
purpose  of  effecting  a  sale,  when  he  knows  that  there  is  no  title,  the 
contract  will  be  rescinded  and  the  parties  placed  in  statu  quo.* 

1  Bickley  v.  Biddle,  33  Pa.  St.  276.  But  see  Reiner's  Appeal,  (Pa.  St.)  12  All. 
Rep.  850,  where  it  was  held  that  an  executor  has  a  right,  when  making  a  sale,  to 
declare  that  the  purchaser  shall  take  free  of  an  incumbrance  on  the  premises,  and 
that  the  estate  must  reimburse  the  purchaser  if  he  be  compelled  to  discharge  the 
lien. 

'Halleck  v.  Guy,  9  Cal.  181;  70  Am.  Dec.  643.  A  number  of  authorities  will 
be  found  collected  in  the  briefs  of  counsel  and  in  the  opinion  of  the  court  in  this 
case. 

1  Schouler  on  Executors  (2d  ed.),  §  212. 

4  Le  Moyne  v.  Quimby,  70  111.  399. 

8  Hickson  v.  Linggold,  47  Ala.  449  ;  Fore  T.  McKenzie,  58  Ala.  115,  provided  the 
purchaser  does  not,  with  knowledge  of  the  fraud,  permit  the  sale  to  be  confirmed. 
Crayton  v.  Hunger,  9  Tex.  285;  Able  v.  Chandler,  12  Tex.  88;  62  Am.  Dec.  518, 
where  the  sale  was  of  personal  property;  Roehl  v.  Pleasants,  31  Tex.  45;  98  Am. 
Dec.  514;  Walton  v.  Reager,  20  Tex.  103.  Bond  v.  Ramsey,  89  111.  29.  Ives  v. 
Pierson,  1  Freem.  Ch.  (Miss.)  220.  As  to  whether  a  prior  conveyance  by  the 
administrator  or  the  intestate  entitles  the  purchaser  to  relief,  see  Ward  v.  Wil- 
liams, 45  Tex.  617,  criticising  Walton  v.  Reager,  20  Tex.  103.  Banks  T.  Ammon, 
27  Pa.  St.  172.  Love  v.  Berry,  22  Tex.  371.  "  If  the  administrator  makes  repre- 
sentations which  be  knows  to  be  untrue  for  the  purpose  of  deceiving  the  pur- 
chaser, who  is  thereby  deceived,  without  that  degree  of  negligence  on  his 
part  which  will  throw  the  responsibility  of  the  description  upon  himself,  we 
hold  that  he  may  show  that  fraud  in  defense  to  the  note.  (Mason  v.  Wait, 
4  Scam.  [111.]  135;  England  v.  Clark,  4  Scam.  [111.]  489;  Welch  v.  Hoyt,  24  111. 
118;  Linton  v.  Porter,  31  111.  120.)  This  does  not  dispense  with  the  applica- 
tion of  the  rule  caveat  emptor  to  such  sales.  I  know  of  no  case  where  that  rule 
has  ever  been  so  applied  as  to  excuse  a  fraud.  The  utmost  vigilance  may  often 
be  unable  to  guard  against  the  practices  of  the  fraudulent.  As  has  been  repeat- 
edly decided  by  this  court,  in  the  absence  of  fraud  the  purchaser  at  such  sale 
must  not  only  look  out  for  the  title,  but  for  the  quality  of  the  article  which  he 
purchases.  Nor  can  the  administrator  bind  the  estate  by  a  warranty  of  either. 
If  he  assumes  to  do  so  he  would  be  personally  responsible  upon  such  warranty. 


CAVEAT  EMPTOB.  113 

The  rule  that  the  maxim  caveat  emptor  applies  in  its  strictest 
sense  to  sales  by  executors  and  administrators  under  judicial  license 
is  established,  as  we  have  seen,  in  most  of  the  American  States. 
But  in  some  of  the  States  it  does  not  prevail  in  its  fullest  extent. 
Thus,  in  Mississippi  it  has  been  held  that  a  purchaser  from  an 
administrator  under  a  probate  license  may  refuse  to  pay  his  bond 
for  the  purchase  money,  if  the  proceedings  in  which  license  culmi- 
nated fail  to  show  notice  to  the  heirs,  as  required  by  law.1  And  in 
Texas,  where  an  administrator  sold  land  to  which  there  was  no 
other  title  than  a  location  under  a  rejected  and  fraudulent  certifi- 
cate, it  was  held  that  the  rule  caveat  emptor  did  not  apply,  the  court 
saying  that  it  was  simply  a  question  of  justice,  whether  the  estate 
having  parted  with  nothing,  and  the  purchaser  having  gotten  noth- 
ing, he  should  be  compelled  to  pay.2  So,  also,  it  has  been  held  that 
a  purchaser  from  an  administrator  whose  powers  have  been  revoked 
will  be  relieved  in  equity.3  And  generally  it  has  been  held  that  if  a 
probate  sale  be  void,  either  for  want  of  jurisdiction  in  the  court  to 
order  the  sale,  or  for  want  of  authority  in  the  administrator  to  sell, 
the  purchaser  cannot  be  compelled  to  pay  the  purchase  money.4 
This  is  without  doubt  a  great  relaxation  of  the  rule  caveat  emptor ', 
if  not  entirely  inconsistent  therewith,  inasmuch  as  the  defect  would 

This  is  carrying  the  doctrine  of  risk  to  the  purchaser  and  immunity  to  the  estate 
far  enough.  To  go  further  and  sanction  the  practice  of  a  fraud  would  tend  to 
drive  all  men  from  such  sales,  which  would  prove  a  serious  detriment  to  estates." 
CATON,  J.,  in  Ray  v.  Virgin,  12  111.  216. 

•Gwin  v.  McCarroll,  1  Sm.  &  M.  (Miss.)  351;  Laughman  v.  Thompson,  6  Sm. 
&  M.  (Miss.)  259;  Worten  v.  Howard,  2  Sm.  &  M.  (Miss.)  530;  41  Am.  Dec.  607. 
Compare  Mellen  v.  Boarraan,  13  Sm.  &  M.  100.  Contra,  Bishop  v.  O'Connor,  69 
HI.  431. 

'Roehl  v.  Pleasants,  31  Tex.  45;  98  Am.  Dec.  514.  The  same  observation 
would  apply  with  equal  force  in  a  case  in  which  the  purchaser  is  put  in  posses- 
sion and  afterwards  evicted  by  one  claiming  under  a  paramount  title;  yet,  as  we 
have  seen,  the  purchaser  is  denied  relief  in  such  a  case.  It  is  not  easy  to  recon- 
cile this  decision  with  the  declaration  in  Rice  v.  Burnett,  89  Tex.  177,  that  a  pur- 
chaser at  an  administrator's  sale  is  to  be  regarded  as  a  mere  speculator;  to  win  if 
he  gets  a  good  title,  and  to  lose  if  the  title  be  worthless. 

3  Levy  v.  Riley,  4  Oreg.  392. 

4  Woerner  Am.  Law  of  Admn.  §  485;  Freeman  Void  Jud.  Sales,  §  48.     Wyatt 
v.  Rambo,  29  Ala.  517;  68  Am.   Dec.  89;  Ikelheimer  v.  Chapman,  32  Ala.  876; 
Riddle  v.  Hill,  51  Ala.  224.    Campbell  v.  Brown,  6  How.  (Miss.)  280.    Bartee  r. 
Tompkins,  4  Sneed  (Tenn.),  628. 

15 


114  MARKETABLE  TITLE  TO  REAL  ESTATE. 

be,  in  most  instances,  palpable  upon  the  f^ce  of  the  proceeding*, 
and  one  to  which  the  attention  of  the  purchaser  would  naturally  be 
directed  in  the  first  instance.1  The  right  of  a  purchaser  at  a  void 
probate  sale  to  be  subrogated  to  the  rights  of  the  creditor  whose 
debt  was  paid  out  of  the  proceeds  of  the  sale,  will  be  considered 
hereafter.2  It  seems  that  a  purchaser  at  a  void  probate  sale  cannot, 
where  time  is  not  material,  rescind  the  contract  if  the  heirs  are  will- 
ing to  join  in  a  conveyance  of  the  land  to  lima.8  In  the  State  of 
New  York  a  purchaser  at  a  probate  sale  may  refuse  to  complete  hi« 
purchase  if  the  title  be  bad.  He  cannot  be  compelled  to  accept  an 
•unmarketable  title.4  Such  a  rule,  it  is  believed,  conduces  to  the 
interests  and  advantage  of  all  parties,  by  increasing  the  confidence 
of  bidders  at  probate  sales,  by  protecting  purchasers  against  latent 
defects  in  the  title,  and  by  preventing  sacrifice  and  loss  to  the  estate 
of  the  decedent.  In  suits  against  purchasers  at  probate  sales  the 
courts  will  be  slow  to  entertain  objections  to  title  founded  upon 
errors,  defects  and  irregularities  in  the  proceedings  under  which  the 
administrator  derived  his  authority  to  sell.  Mere  omissions  by  the 
administrator,  or  by  the  court,  to  do  certain  things  not  essential  to- 
the  jurisdiction  of  the  court  cannot  defeat  the  title  of  a  bona  fide 
purchaser  from  the  administrator.  The  repose  and  security  of  such 
purchaser  in  their  titles  is  of  the  greatest  interest  to  the  public,  for  if 
they  could  be  evicted  or  disturbed  in  their  possession  because  of 
such  errors  and  omissions,  probate  sales  would  be  dampened,  and 
the  estates  of  decedents  would  be  sacrificed.5  Therefore,  it  has  been 
said  by  the  most  eminent  judicial  authority  that  "  there  are  no 
judicial  sales  around  which  greater  sanctity  ought  to  be  placed  than 
those  of  the  estates  of  decedents,  made  by  order  of  those  courts  to 
which  the  laws  of  the  States  confide  full  jurisdiction  over  the  subject.' 
§  56.  Want  of  jurisdiction,  errors  and  irregularities  in  pro- 
bate proceedings.  What  has  been  already  said  in  respect  to  want 

1  Ante,  §  46. 

1  Post,  this  chapter,  §  65. 

1  Lamkin  v.  Reese,  7  Ala.  170.     See,  also,  Lampton  v.  Usher,  7  B.  MOD.  (Ky.)57. 

4  See  the  case  of  Wilson  v.  White,  109  N.  Y.  59,  in  which  a  purchaser  from  an 
executor  selling  under  a  surrogate's  order  was  relieved  from  his  bid  on  the 
ground  that  the  title  was  defective.  See,  also,  Headrick  v.  Yount,  22  Kans.  344. 

4  Poor  v.  Boyce,  12  Tex.  140. 

•  Grignon  v.  Astor,  2  How.  (U.  S.)  243. 


CAVEAT  EMPTOB.  115 

of  jurisdiction,  errors  and  irregularities  in  judicial  proceedings  gen- 
erally, as  affecting  the  title  of  a  purchaser  thereunder,  applies  to 
sales  by  executors,  administrators,  or  other  officers  under  probate 
licenses.1  It  may  be  useful,  however,  to  present  here  several 
instances  in  which  the  title  of  a  purchaser  at  such  a  sale  has  been 
declared  sufficient  or  insufficient  with  respect  to  the  validity  of  pro- 
bate proceedings.  It  has  been  held  that  an  order  for  the  sale  of  the 
lands  of  a  decedent,  made  by  the  probate  court  before  petition  filed 
by  the  administrator  for  that  purpose,  and  before  a  return  of  a  cita- 
tion against  the  heirs  as  required  by  statute,  is  void  for  want  of 
jurisdiction,  and  may  be  attacked  in  a  collateral  proceeding.2  So, 
also,  where  the  proceedings  show  upon  their  face  that  the  adminis- 
trator was  not  entitled  to  letters  of  administration.8  So,  where  no 
order  of  publication  of  the  application  for  license  to  sell  is  made,  as 
required  by  statute.4  So,  also,  where  such  application  tails  to  set 
forth  the  names  of  the  heirs  at  law,  and  the  citation  to  answer  is  not 
directed  to  all  the  heirs,  as  required  by  law.5  The  jurisdiction  of  a 
probate  court  to  order  a  sale  of  the  lands  of  a  decedent  is  founded 
upon  the  fact  that  there  are  debts  due  by  him,  and  a  decree  founded 
upon  a  petition  for  such  sale  which  contains  no  averment  that  the 
estate  is  indebted  is  not  simply  reversible  for  error,  but  is  void  and 
open  to  collateral  attack.6  Payment  of  the  purchase  money  in  full 
and  occupancy  of  the  premises  will  not  give  a  purchaser  at  a  pro- 
bate sale  title  as  against  the  heir,  imless  the  sale  has  been  confirmed 

1  Ante,  p.  76.  Upon  the  general  proposition  that  the  validity  of  a  probate  sale 
cannot  be  attacked  in  a  collateral  proceeding,  except  upon  the  ground  of  want  of 
jurisdiction  to  order  the  sale,  see  Rorer  on  Judicial  Sales,  §  349;  Freeman  Void 
Jud.  Sales,  chap.  2;  2  Woerner  Am.  Law  of  Admn.  §  488. 

'Finch  v.  Edmondson,  9  Tex.  504;  Campbell  v.  Brown,  6  How.  (Miss.)  106, 
230;  Puckett  v.  McDonald,  6  How.  (Miss.)  269;  Gwin  v.  McCarroll,  1  Sm.  &  M. 
(Miss.)  361. 

•Haugv.  Primeau,  98  Mich.  91;  57  N.  W.  Rep.  25;  Templeton  v.  Falla  Land 
Co.,  77  Tex.  55;  13  S.  W.  Rep.  964,  and  Texas  cases  there  cited. 

4  Cunningham  v.  Anderson,  (Mo.)  17  S.  "W.  Rep.  972. 

6  In  re  John's  Estate,  21  Civ.  Proc.  R.  (N.  Y.)  326;  18  «N.  Y.  Supp.  172. 

•Lyons  v.  McCurdy,  90  Ala.  493;  8  So.  Rep.  52;  citing  Tyson  v.  Brown,  64 
Ala.  244;  Wilburn  v.  McCalley,  63  Ala.  436;  Quarles  v.  Campbell,  72  Ala.  64; 
Robertson  v.  Bradford,  70  Ala.  385;  Meadows  v.  Meadows,  73  Ala.  356;  Land- 
ford  v.  Dunkton,  71  Ala.  594;  McCorkle  v.  llhea,  75  Ala.  213;  Ballard  v.  John*, 
80  Ala.  32;  Morgan  v.  Famed.  83  Ala.  367;  8  So.  Rep.  798. 


116  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

and  a  conveyance  made.1  A  sale  of  more  than  enough  land  to  pay 
the  debts  of  an  estate,  or  a  license  to  sell  enough  for  that  purpose 
only,  is  absolutely  void.2  If  the  statute  law  provides  that  the  lands 
of  a  decedent  shall  not  be  sold  for  the  payment  of  his  debts  unless 
the  personal  estate  is  insufficient  for  that  purpose,  the  court  will  not 
have  jurisdiction  to  direct  a  sale  of  the  lands  unless  the  petition  or 
complaint  avers  the  insufficiency  of  the  personalty  to  pay  the  debts.8 
If  notice  of  application  by  the  administrator  for  license  to  sell  be 
not  given  the  heirs  and  other  persons  interested,  in  pursuance  of  the 
statute,  the  sale  will  be  void,  and  open  to  collateral  attack.4  But 
want  of  service  of  a  summons  on  the  guardian  ad  litem  of  infant 
heirs  makes  the  subsequent  proceeding  reversible  for  error  and  not 
absolutely  void,  and,  therefore,  does  not  affect  the  title  of  the  pur- 
chaser.5 Where  the  courts  of  law  or  equity,  and  not  the  probate 
court,  have  power  to  order  a  sale  of  devised  lands  as  assets  for  the 
payment  of  the  testator's  debts,  an  order  of  the  probate  court  direct- 
ing such  a  sale  is  without  jurisdiction  and  absolutely  void.6 

On  the  other  hand,  it  has  been  held  that  the  validity  of  an  adminis- 
trator's sale  will  not  be  affected  by  the  fact  that  he  gave  no  bond  to 
conduct  the  sale  properly,7  nor  that  the  record  failed  to  show  a 

•Greenough  v.  Small,  137  Pa.  St.  132;  20  Atl.  Rep.  553;  Morgan's  App.,  110 
Pa.  St.  271;  4  Atl.  Rep.  506;  Armstrong's  App.,  68  Pa.  St.  409;  Demmy's  App., 
43  Pa.  St.  169. 

JGregson  v.  Tuson,  (Mass.)  26  N.  E.  Rep.  874.  Contra,  Comstock  v.  Crawford, 
3  Wall.  (U.  S.)  396;  Hodges  v.  Fabian,  (So.  Car.)  9  8.  E.  Rep.  820. 

3  Needham  v.  Salt  Lake  City,  (Utah)  26  Pac.  Rep.  920;  citing  Comstock  T. 
Crawford,  3  Wall.  (U.  S.)  396,  dictum. 

'Mickel  v.  Hicks,  19  Kans.  578;  27  Am.  Rep.  161;  Chicago,  Kan.  &  Neb.  R.  Co. 
v.  Cook,  43  Kans.  83;  22  Pac.  Rep.  988;  Harrison  v..  Harrison,  106  N.  Car.  282; 
11  S.  E.  Rep.  356.  This,  however,  was  not  a  case  of  collateral  attack.  The  rule 
ic  North  Carolina  was  otherwise  as  to  infants  until  by  statute  service  of  summons 
was  required  to  be  made  on  the  infant.  Hare  v.  Hollomon,  94  N.  Car.  14. 

&  Coffin  v.  Cook,  106  N.  C.  376;  11  S.  E.  Rep.  371. 

*  Atwood  v.  Frost,  51  Mich.  360;  73  Mich.  67.  Other  instances  in  which  judg- 
ments or  orders  of  probate  courts  have  been  held  void  for  want  of  jurisdiction 
and  open  to  collateral  attack  will  be  found  in  Kertchem  v.  George,  78  Cal.  597; 

21  Pac.  Rep.  372;  Rogers  v.  Clemmans.  26  Kans.  522;  Coulson  v.  Wing,  (Kans.) 

22  Pac.  Rep.  570;  Black  v.  Dressell,  20  Kans.  153.     In  McNally  v.  Haynes,  59 
Tex.  583,  it  was  held  that  a  purchaser  at  a  probate  sale  was  chargeable  only  with 
notice  of  the  application  for  the  sale,  the  order  of  sale  and  the  sale  itself,  with 
accompanying  exhibits,  if  any,  and  that  beyond  these  he  was  not  bound  to  look. 

1  Wyman  v.  Campbell,  6  Port.  (Ala.)  219;  31  Am.  Dec.  677. 


CAVEAT  EMPTOR.  117 

necessity  for  the  sale,1  nor  that  an  inadequate  price  was  realized  for 
the  property  sold,2  nor  that  the  administrator  died  pending  the  pro- 
ceeding to  sell.8  Irregularities  in  the  publication  of  notice  to  non- 
resident defendants  in  a  proceeding  to  sell  land  for  the  payment  of 
a  decedent's  debts,  will  not  avoid  the  title  of  the  purchaser.4  A 
recital  in  the  record  of  probate  proceedings  for  the  sale  of  land  that 
notice  of  the  sale  had  been  posted  as  required  by  law  cannot  be 
contradicted  in  a  collateral  proceeding.5  If  the  record  is  silent  as 
to  the  existence  of  certain  jurisdictional  facts,  and  those  facts  are  of 
a  kind  that  are  not  required  to  appear  affirmatively  from  the  record, 
it  will  be  presumed  that  the  court  was  satisfied  of  their  existence  at 
the  time  of  pronouncing  judgment.6  The  regularity  and  validity  of 
the  appointment  and  qualification  of  an  administrator  who  has 
been  recognized  by  the  probate  court  and  authorized  to  sell,  cannot 
be  inquired  into  collaterally.7  Fraudulent  collusion  between  the 
administrator  and  the  purchaser,  by  which  the  land  is  sacrificed, 
furnishes  a  ground  upon  which  the  heirs  may  avoid  the  sale.8  And 
it  may  be  stated  as  a  general  rule  that  in  a  case  of  fraud,  whether 
in  the  procurement  or  rendition  of  the  order  under  which  the  sale 
is  made,  or  in  the  proceedings  anterior  to  or  at  the  time  of  the  sale, 
whereby  the  heirs  are  deprived  of  their  rights  in  the  premises, 
makes  the  title  liable  to  attack  in  the  hands  of  a  purchaser  with 
notice  of  the  fraud.9  But  the  liability  of  the  title  to  attack  on  this 

1  Lynch  v.  Baxter,  4  Tex.  431;  51  Am.  Dec.  535;  Poor  v.  Boyce,  12  Tex.  449. 

*  Williams  v.  Johnson,  (N.  Car.)  17  S.  E.  Rep.  496. 

•Palmerton  v.  Hoop,  (Ind.  Sup.)  30  N.  E.  Rep.  874;  Gross  Lumber  Co.  v.  Leit- 
ner,  91  Ga.  810;  18  S.  E.  Rep.  62;  Succession  of  Massey,  46  La.  Ann.  126;  15  So. 
Rep.  6. 

4  Berrian  v.  Rogers,  43  Fed.  467;  Mohr  v.  Maniere,  101  U.  S.  417.  Contra,  Mohr 
v.  Tulip,  40  Wis.  66. 

•Richardson  v.  Butler,  82  Cal.  174;  23  Pac.  Rep.  9. 

•  Ante,  §  50.     McMillan  v.  Reeves,  102  N.  Car.  550;  9  8.  E.  Rep.  449,  where 
the  authority  of  counsel  to  act  for  those  not  served  with  process  was  presumed 
to  exist,  the  same  not  having  been  disputed  in  the  proceedings  complained  of. 
Mills  v.  Herndon,  77  Tex.  89;  13  S.  W.  Rep.  854;  Price  v.  Springfield  Real 
Estate  Assn.,  (Mo.)  10  S.  W.  Rep.  57. 

1  Poor  v.  Boyce,  12  Tex.  440. 
1  Freeman  Void  Jud.  Sales,  §  40. 

»In  Lynch  v.  Baxter,  4  Tex.  431;  51  Am.  Dec.  735,  it  was  intimated  that  if  a 
sale  by  an  administrator  for  the  payment  of  debts,  when  there  was  no  necessity 


118  MARKETABLE  TITLE  TO  REAL  ESTATE. 

ground  will  not  relieve  the  purchaser  from  the  contract,  if  the  fraud 
appeared  upon  the  face  of  the  proceedings,  and  might  have  been 
discovered  by  the  exercise  of  due  diligence.1 

j  57.  8HEK.ur.irS  SALES.  Want  of  title  in  execution  defendant. 
General  rul<es.  The  title  which  a  purchaser  at  an  execution  sale 
will  acquire  may  be  worthless  for  three  reasons :  (1)  Because  of  a 
complete  want  of  title  on  the  part  of  the  execution  defendant ;  the 
purchaser  may  be  evicted  by  some  one  having  a  title  paramount  to 
that  which  the  officer  undertakes  to  selL  (2)  Because  the  judg- 
ment or  order  under  which  the  officer  professes  to  act  is  void  for 
want  of  jurisdiction  in  the  court,  or  for  some  other  reason,  is  open 
to  collateral  attack,  and  insufficient  to  bar  a  recovery  of  the  estate 
from  the  purchaser  by  the  judgment  debtor  or  those  claiming  under 
him.  (3)  Because  of  some  matter  transpiring  subsequent  to  the 
judgment  or  order  under  which  the  sale  is  made,  avoiding  the  sale, 
for  example,  a  levy  and  sale  after  the  return  day  of  the  process 
under  which  the  officer  acts. 

The  maxim  or  rule  caveat  emptor  applies  with  peculiar  force  to 
cases  in  which  there  is  a  complete  want  of  title  in  the  execution 
defendant.*  In  most  of  the  States  there  is  no  report  or  confirma- 
tion of  the  sale  ;  no  time  is  given  for  examination  of  the  title  ;  the 

therefor,  was  fraudulently  procured  by  the  purchaser  in  collusion  with  the 
administrator,  the  title  thereunder  would  be  open  to  attack. 

1  Rice  T.  Burnett,  39  Tex.  177. 

*  Freeman  on  Executions,  |  335;  Herman  on  Executions,  p.  395;  Freeman  Void 
Jud.  Sales,  £48;  Roreron  Jud.  Sales,  p.  603;  Title  "Sheriffs,"  Am.  &Eng.  Encyc. 
of  L.  The  Monte  Allegro,  9  Wh.  (U.  S.)  616.  Here  the  sale  was  of  personal 
property,  but  the  case  has  been  constantly  cited  in  applying  the  same  principle 
to  sales  of  realty  under  execution.  Lang  v.  Waring,  35  Ala.  625;  60  Am.  Dec. 
533;  Goodbar  T.  Daniel,  88  Ala.  583;  7  So.  Rep.  254;  Thomas  v.  Glazener,  90 
Ala.  537;  8  So.  Rep.  153.  Danly  T.  Rector,  10  Ark.  211;  1  Am.  Dec.  242.  John* 
T.  Frick,  22  Cal.  512.  Methvin  v.  Bexley,  18  Ga.  551.  England  v.  Clark,  4 
Scam.  (Dl)  486;  Walbridge  v.  Day,  31  DL  379;  83  Am.  Dec.  227;  Bassett  T. 
Lockard,  60  111.  164;  Alday  T.  Rock  Island  Co.,  45  I1L  App.  62.  Vest  T.  Weir, 
4  Blackf.  (Ind.)  135;  Walden  v.  Gridley,  36  Ind  523.  Holtzinger  v.  Edwards,  51 
Iowa,  383.  Treptow  T.  Buse,  10  Kans.  170.  Hand  v.  Grant,  10  Smed.  &  M. 
(Miss.)  514,  43  Am.  Dec.  528.  Miller  v.  Finn,  1  Neb.  254  Mervin  Y.  Vanlier,  7 
N.  J.  Eq.  34  Vattier  v.  Lytle,  6  Ohio,  477;  Corwin  v.  Benham,  2  Ohio  St.  36; 
Creps  T.  Baird,  3  Ohio  St  277.  Weidler  v.  Bank,  11  Serg.  &  R.  (Pa.)  134; 
AuwertCT  v.  Mathiot,  9  Serg.  &  R.  (Pa.)  399;  Friedly  v.  Scheetz,  9  Serg.  &  R, 
(Pa.)  159;  11  Am.  Dec.  691;  Smith  T.  Painter,  5  Serg.  &  R.  (Pa.)  223;  9  Am. 


CAVEAT  EMPTOR.  119 

purchaser  pays  the  cash,  the  officer  executes  a  deed,  and  the  transac- 
tion is  ended,  so  that  there  is  no  room  for  the  application  of  any 
asserted  equitable  right  to  detain  the  purchase  money  where  the  title 
fails,  as  in  the  ordinary  case  of  vendor  and  vendee.  Such  sales 
stand  much  upon  the  same  footing  as  tax  sales.  The  purchaser 
regulates  his  bid  by  his  knowledge  that  he  will  get  merely  such  title 
as  the  execution  defendant  has,  though  it  be  utterly  worthless ;  con- 
sequently the  property  is  usually  knocked  down  to  him  at  a  nominal 
figure.  Again,  the  sheriff  stands  in  the  place  of  the  execution 
debtor,  and  sells  merely  such  title  or  interest  as  the  debtor  may 
have  in  the  property.  The  sale  by  the  sheriff  can  amount  to  no 
more  than  a  sale  by  the  debtor  himself  of  merely  such  estate  or 
title  as  he  might  have,  expressly  without  warranty,  and,  as  the  pur- 
chaser could  in  such  case  neither  detain  nor  recover  back  the  pur- 
chase money  from  the  debtor  on  failure  of  the  title,  neither  can  he 
in  such  case  detain  or  recover  it  back  from  the  sheriff  or  the  execu- 
tion creditor.1  Therefore,  stringent  applications  of  the  rule  caveat 

Dec.  344;  Coyne  v.  Souther,  61  Pa.  St.  456;  Wills  v.  Van  Dyke,  106  Pa.  St.  111. 
Upham  v.  Hamill,  11  R.  I.  565;  23  Am.  Rep.  525.  Thayer  v.  Sheriff,  2  Bay  (S. 
Car.),  171;  Earth  v.  Gibbs,  3  Rich.  L.  (S.  Car.)  316;  Wingo  v.  Brown,  14  Rich. 
(8.  Car.)  103.  Oberthier  v.  Stroud,  33  Tex.  525.  Henderson  v.  Overton,  2  Yerg. 
{Tenn.)  393;  24  Am.  Dec.  492,  unless  the  sale  was  made  under  a  void  judgment; 
Bostick  v.  Winton,  1  Sneed  (Tenn.),  541.  Saunders  v.  Pate,  4  Rand.  (Va.)  8, 
where,  however,  the  sale  was  of  personal  property.  In  Methvin  v.  Bexley,  18 
Ga.  551,  a  purchaser  at  a  sheriff's  sale,  who  had  been  evicted  from  the  premises, 
filed  a  bill  to  recover  from  the  sheriff  a  surplus  remaining  in  the  sheriff's  hands 
after  satisfying  the  execution,  which  surplus  the  sheriff  claimed  by  virtue  of  other 
fi.  fas.  against  the  same  defendant.  It  was  held  that  the  rule  caveat  emptor 
applied,  and  that  the  bill  could  not  be  maintained.  The  rule  caveat  emptor,  as  it 
applies  to  sheriffs'  sales,  is  thus  defended  by  the  court  in  Thayer  v.  Sheriff,  2 
Bay  (S.  C.),  169:  "These  sales  are  made  by  operation  of  law,  in  which  the  will 
and  consent  of  the  defendants  are  never  consulted.  They  are  forced  upon  them, 
whether  they  assent  or  dissent  to  or  from  them,  and  it  is  their  right,  whatever 
that  may  be,  more  or  less,  that  is  sold  by  the  sheriff,  who  is  a  public  officer  of 
justice.  There  is  no  warranty  in  law,  either  express  or  implied,  raised  on  any  of 
the  parties  concerned  in  such  a  sale;  neither  on  the  part  of  the  former  owner,  the 
defendant,  nor  the  sheriff,  who  is  the  mere  organ  of  the  law  for  transferring  the 
right  of  the  defendant.  Caveat  emptor,  under  these  circumstances,  is  the  best 
possible  rule  that  can  be  laid  down  or  adopted.  Every  man  who  goes  to  a 
sheriff's  sale  ought  to  take  care  and  examine  into  the  title  of  the  defendant  care- 
fully before  he  attempts  to  bid;  and  that  is  one  reason,  among  many,  why  prop- 
erty is  in  general  sold  so  much  under  its  real  value  at  these  sales." 
1  Methvin  v.  Bexley,  18  Ga.  551. 


120  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

emptor  will  be  fonnd  in  cases  of  sales  bj  sheriffs  or  other  minis- 
terial officers  under  executions,  attachments,  or  other  legal  process.1 
The  rule  caveat  emptor  applies  with  additional  force  if  the  pur- 
chaser at  a  sale  under  execution  was  warned  that  the  title  was  in 
dispute.2  The  purchaser  at  a  sale  under  execution  not  only  takes 
merely  snch  title  as  the  execution  debtor  may  have,  but  he  takes 
subject  to  all  equities  which  may  exist  against  the  latter,*  whether 
he  has  notice  of  them  or  not.4  A  purchaser  at  an  execution  sale  is 
not  entitled  to  the  privileges  of  a  purchaser  without  notice.  Thus. 
it  has  been  held  that  he  takes  subject  to  the  right  of  a  third  person 
to  require  a  conveyance  of  the  bare  legal  tide  from  the  execution 
debtor  where  such  person  had  purchased  from  the  debtor  and  paid  the 
purchase  money  without  taking  a  conveyance  before  the  execution 
sale.5  The  same  rule  was  applied  in  a  case  in  which  the  title  to  the 
property  was  being  litigated  between  the  execution  defendant  and 
a  stranger,  the  purchaser  objecting  that  a  lit  pendent  had  not  been 
docketed,  as  the  law  required.'  So,  also,  where  the  execution  plain- 
tiff had  agreed  with  the  defendant  that  the  lien  of  his  judgment 
should  be  postponed  and  made  subsequent  to  a  junior  mortgage.7 
But  inasmuch  a?  a  purchaser  at  a  sale  under  execution  succeeds  to 
all  the  rights  of  the  execution  plaintiff,  the  rule  that  he  takes  sub- 
ject to  all  equities  against  the  execution  defendant  must  obviously 
be  taken  with  the  qualification,  namely,  that  if,  under  the  Registry 
Acts,  the  judgment  under  which  the  sale  is  made  is  a  lien  on  the 
premises  in  the  hands  of  a  purchaser  from  the  judgment  debtor,  the 

'A  sale  by  a  sheriff,  foreclosing  a  mortgage,  is  a  "sheriff's  sale/'  within  the 
meaning  of  the  role  cateat  emptor.  Walbridge  v.  Day  31  DL  379;  83  Am.  Dec. 
227. 

1  Oberthier  v.  Stroud,  33  Tex.  522;  Boro  v.  Harris,  13  Lea  (Tenn.),  36. 

'Osterman  v.  Baldwin,  6  Wall  (U.  S.)  116;  Bell  T.  Flaherty,  45  Miss.  694.  See 
cases  cited  Vol.  6,  U.  S.  Dig.  (1st  series)  141,  §  2202.  If  the  execution  defendant 
have  only  an  equitable  estate,  and  has  not  paid  the  entire  purchase  money,  a 
purchaser  under  the  execution  acquires  only  his  interest,  and  can  get  a  title  only 
by  doing  those  things  upon  performance  of  which  the  debtor  himself  would  hare 
been  enabled  to  demand  a  conveyance  of  the  title.  Walke  v.  Moody,  65  N.  Oar. 
509;  Morgan  v.  Bouse,  53  Mo.  219. 

4  Vannoy  T.  Martin,  6  Ired.  Eq.  (N.  Oar.)  169;  51  Am.  Dec.  41& 

*  Georgetown  v.  Smith,  4  Cranch  C.  C.  (U.  8.)  W. 

•Roffina  v.  Henry,  78  N.  Oar.  342. 

1  Frost  v.  Tonkers  Sav.  Bank,  70  N.  T.  553;  26  Am.  Rep.  627. 


CAVEAT  EMPTOR.  121 

purchaser  under  the  execution  succeeding  to  the  benefit  of  that  lien 
will  take  the  title  discharged  from  the  equitable  rights  of  the  pur- 
chaser from  the  judgment  debtor.1  So,  if  the  judgment  debtor 
incumbers  the  property  after  the  lien  of  the  judgment  has  attached, 
a  subsequent  sale  under  the  judgment  will  carry  a  title  to  the 
purchaser  discharged  of  the  incumbrance.2  It  has  been  held, 
also,  that  the  purchaser  will  not  be  entitled  to  relief  upon  the 
ground  that  all  parties  were  mistaken  in  supposing  that  the  exe- 
cution defendant  had  an  interest  in  the  premises  subject  to  execu- 
tion.8 Nor  will  a  purchaser  at  an  execution  sale  be  released  upon 
the  ground  that  he  had  never  attended  such  a  sale  before,  and  not 
hearing  the  terms  of  the  sale,  supposed  himself  to  be  buying  the 
entire  estate  in  question,  and  not  merely  the  debtor's  "  right,  title 
and  interest  "  therein.4  But  it  has  been  held  that  if  the  execution 
plaintiff  himself  purchase  the  premises  under  a  mistake  as  to  the 
application  of  the  proceeds  to  his  lien,  the  same  being  absorbed  by 
other  liens  on  the  property,  the  sale  will  be  set  aside  upon  his 
motion.5  In  some  of  the  States  sales  of  realty  under  execution  are 
required  to  be  reported  to  court  and  confirmed  before  they  become 
conclusive  upon  the  parties.  Wherever  this  practice  prevails,  it 
seems  that  the  purchaser  may  resist  the  confirmation  of  the  sale 
upon  the  ground  that  the  title  is  bad.6 

1  Halley  v.  Oldham,  5  B.  Mon.  (Ky.)  233;  41  Am.  Dec.  262;  Riley  v.  Million,  4 
J.  J.  M.  (Ky.)  395;  Fosdick  v.  Burr,  3  Ohio  St.  471. 

•Nickles  v.  Haskins,  15  Ala.  619;  50  Am.  Dec.  154;  Spoor  v.  Phillips,  27  Ala. 
193.  Million  v.  Riley,  1  Dana  (Ky.),  359.  Tinney  v.  Watson,  41  111.  215;  Goff  v. 
O'Conner,  16  111.  421.  Campbell  v.  Lowe,  9  Md.  500;  66  Am.  Dec.  339.  Wil- 
liamson v.  Johnston,  12  N.  J.  L.  86;  Den  v.  Young,  12  N.  J.  L.  300;  Bloom  v. 
Welsh,  27  N.  J.  L.  177. 

•Freeman  Void  Jud.  Sales,  §  49.  See  post,  "Mistake"  ch.  35;  Wingo  v. 
Brown,  14  Rich.  L.  (S.  C.)  103.  The  purchaser  in  this  case  refused  to  comply 
with  the  terms  of  sale,  the  land  was  resold,  and  he  was  held  liable  for  the 
difference.  Norman  v.  Norman  26  So.  Car.  41. 

4Upham  v.  Hamill,  11  R.  I.  565;  23  Am.  Rep.  525. 

•Cunimings'  Appeal,  23  Pa.  St.  509,  citing  Ontario  Bank  v.  Lansing,  2 
Wend.  (N.  Y.)  260,  and  Post  v.  Leet,  8  Paige  Ch.  (N.  Y.)  336,  which,  however, 
was  a  sale  by  a  master  in  chancery,  and  not  by  the  sheriff.  But  see  Davis  v. 
Hunt,  2  Bailey  (S.  C.),  412,  where  an  execution  plaintiff,  who  purchased  at 
his  own  sale  under  the  mistaken  supposition  that  his  lien  on  the  property 
was  the  oldest,  was  compelled  to  complete  his  purchase. 

•Wood  v.  Levis,  14  Pa.  St.  9;  Am.  &  Eng.  Encyc.  of  L.  "  Sheriffs." 
16 


122  MARKETABLE  TITLE  TO  REAL  ESTATE. 

In  certain  of  the  States,  a  purchaser  under  execution,  who  has 
been  evicted  by  one  having  a  title  paramount  to  that  of  the  execu- 
tion debtor,  has  been  permitted  to  recover  the  purchase  money  from 
the  execution  plaintiff  upon  the  ground  that,  ex  cequo  et  bono,  the 
purchaser  is  better  entitled  to  the  money  than  the  execution  cred- 
itor is  to  withhold  it  from  him.1  This  doctrine,  however,  is  plainly 
inconsistent  with  the  rule  caveat  emptor.  If  the  purchaser  cannot 
detain  the  unpaid  purchase  money,  a  fortiori  he  cannot  recover  it 
back ;  and  if  he  cannot  recover  it  back  from  the  execution  debtor, 
a  fortiori  he  cannot  recover  it  back  from  the  execution  creditor. 
Therefore,  it  has  been  frequently  held  that  want  of  title  in  the 
debtor  gives  the  purchaser  no  right  of  action  against  the  creditor.2 
And  these  cases,  it  is  believed,  are  sustainable  both  upon  principle 
and  authority.  Of  course,  however,  the  creditor  may,  by  his  con- 

1  Henderson  v.  Overton,  2  Yerg.  (Tenn.)  393;  24  Am.  Dec.  492.  Chapman  r. 
Brooklyn,  40  N.  Y.  372.  Citizens'  Bank  v.  Freitag,  37  La.  Ann.  71;  Gaines  T. 
Merchants'  Bank,  2  La.  Ann.  479;  Mclntosh  v.  Smith,  2  La.  Ann.  756.  It  will 
be  remembered  that  the  rule  caveat  emptor  is  not  strictly  observed  in  Louisiana, 
the  civil  law  prevailing  there.  In  New  York,  the  execution  purchaser,  if  evicted 
because  of  irregularity  in  the  proceedings,  or  error  in  the  judgment  on  which 
the  execution  was  issued,  may  recover  the  purchase  money  from  "  the  person  for 
whose  benefit  the  property  was  sold."  Code  C.  P.  N.  Y.  §§  1479, 1480;  Gerrard's 
Titles  to  Real  Estate  (3d  ed.),  797.  Several  cases  have  been  cited  to  this  proposi- 
tion which  decide  nothing  more  than  that  money  paid  under  a  mistake  of  fact 
may  be  recovered  back.  Among  others  are  Rheel  v.  Hicks,  25  N.  Y.  289;  Kings- 
ton Bank  v.  Eltinge,  40  K  Y.  391;  100  Am.  Dec.  516;  Kelly  v.  Solari,  9  M.  &  W. 
54;  Miller  v.  Duncan,  6  B.  &  C.  671.  The  case  of  Moses  v.  McPherlan,  2  Burr, 
1012;  1  W.  Bl.  219,  has  been  relied  upon  in  support  of  this  doctrine,  but  it  can 
hardly  be  considered  in  point,  for  there  the  defendant  had  agreed  in  writing  to 
indemnify  the  plaintiff  against  his  indorsement  of  certain  notes,  on  which  indorse- 
ment the  defendant  afterwards  recovered  judgment,  in  violation  of  his  agreement. 

»U.  S.  v.  Duncan,  4  McLean  (U.  S.),  607.  Dunn  v.  Frazier,  8  Blackf.  (Ind.) 
432.  Whitmore  v.  Parks,  3  Humph.  (Tenn.)  95;  Kimbrough  r.  Burton,  3 
Humph.  (Tenn.)  110.  Judice  v.  Kerr,  8  La.  Ann.  462.  England  v.  Clark,  4 
Scam.  (111.)  486,  the  cburt  saying:  "  The  plaintiff  has  received  no  more  than  he 
was  legally  entitled  to,  and,  although  it  came  from  the  purchaser  and  he  has  lost 
the  consideration  for  which  he  paid  his  money,  it  was  not  the  procurement  or 
agency  of  the  plaintiff  that  induced  the  purchase  or  occasioned  the  loss.  He 
allowed  the  law  to  take  its  course  without  interposition  or  control,  and  by  receiv- 
ing from  its  officer  the  fruits  of  its  process,  he  violated  no  legal  or  equitable 
obligation,  and  incurred  neither  the  one  nor  the  other,  to  refund  that  which  he 
was  entitled  to  receive." 


CAVEAT  EMPTOR.  123 

duct,  make  himself  liable  to  the  purchaser,  as  where,  knowing  the 
title  to  be  worthless,  he  induces  the  purchaser  to  bid  by  representing 
it  to  be  good.1 

§  58.  Exceptions.  The  rule  that  a  purchaser  of  a  worthless  title 
at  a  sale  under  execution  is  without  relief  is  undoubtedly  sustained 
by  the  weight  of  authority  in  America.2  But  exceptions  to  that 
rule  have  been  declared.  Thus,  it  has  been  broadly  laid  down  that 
a  sale  of  land  on  execution  will  be  set  aside  on  the  motion  of  the 
purchaser  if  it  appear  that  the  execution  defendant  had  no  interest 
in  the  land  when  sold  ;s  especially  if  the  execution  plaintiff  himself 
be  the  purchaser.4  In  some  of  the  States  the  right  of  the  purchaser 
to  relief  when  there  is  no  title  is  fixed  by  statute.5  It  the  execution 
be  levied  by  mistake  on  the  lands  of  a  stranger,  the  levy  and  sale 
will  be  set  aside.6  So,  also,  where  an  execution  has  been  levied  on 

1  Schwinger  v.  Hickock,  53  N.  Y.  280 

s  Ante,  §  57. 

1  Rocksell  v.  Allen,  3  McLean  (U.  S.),  357.  Ritter  v.  Henshaw,  7  Iowa,  97,  an 
early  Iowa  case,  enforces  the  rule  caveat  emptor  against  the  purchaser  under  cir- 
cumstances of  much  hardship.  Dean  v.  Morris,  4  Green  (Io.),  312. 

4  Freeman  Void  Jud.  Sales,  §  49.  Warner  v.  Helm,  1  Gil.  (111.)  220,  234.  Wat- 
son v.  Reissig,  24  111.  281;  76  Am.  Dec.  746.  Lansing  v.  Quackenbush,  5  Cow. 
(N.  Y.)  38.  Ontario  Bank  v.  Lansing,  2  Wend.  (N.  Y.)  260,  tumble.  Ritter  v. 
Henahaw,  7  Iowa,  97.  In  Alabama  if  the  execution  plaintiff  purchase  the  prop- 
erty the  execution  is  satisfied  pro  tanto,  whether  the  defendant  had  or  had  not 
title  to  the  property.  Thomas  v.  Glazener,  90  Ala.  537;  8  So.  Rep.  153,  especially 
if  he  had  notice  of  the  want  of  title.  McCartney  v.  King,  25  Ala.  681;  Good  bar 
v.  Daniel,  88  Ala.  583. 

*  Hammersmith  v.  Espy,  19  Iowa,  444.  "When  any  person  shall  purchase  at 
sheriff 's  sale  any  real  estate  on  which  the  judgment  upon  which  the  execution 
issued  was  not  a  lien  at  the  time  of  the  levy,  and  which  fact  was  unknown  to  the 
purchaser,  the  district  court  shall  set  aside  such  sale  on  motion,"  etc.  Revision, 
§  3321.  This  has  been  construed  to  mean  that  if  the  judgment  debtor  has  no 
interest  in  the  land  sold  the  purchaser  may  have  the  sale  set  aside.  Chambers  v. 
Cochran,  18  Iowa,  159;  but  see  Holtzinger  v.  Edwards,  51  Iowa,  383,  where  a 
narrower  construction  is  given  to  the  statute.  But  the*  purchaser  cannot  under 
this  statute  have  relief  if  he  buys  with  notice  of  the  want  of  title.  Cameron  v. 
Logan,  8  Iowa,  434;  Jones  v.  Blumenstein,  77  Iowa,  361.  In  North  Carolina  and 
California  there  are  also  statutes  giving  a  remedy  to  purchasers  of  worthless 
titles  at  execution  sales.  Halcombe  v.  Loudermilk,  3  Jones  L.  (N.  C.)  491. 
Code  Civil  Proc.  Cal.  §  708. 

«De  Wolf  v.  Mallett,  3  Dana  (Ky.),  214.  In  this  case,  however,  the  sale  WM 
set  aside  at  the  instance  of  the  execution  plaintiff,  the  purchaser  consenting. 


124  MARKETABLE  TITLE  TO  REAL  ESTATE. 

personal  property  to  which  the  execution  defendant  had  no  title,  the 
purchaser,  having  been  compelled  to  satisfy  the  true  owner,  has 
been  held  entitled  to  reimbursement  from  the  execution  debtor.1 

A  decision  of  the  Kentucky  Court  of  Appeals  establishes  the 
proposition  that  a  purchaser  at  an  execution  sale  may  detain  the 
unpaid  purchase  money  if  the  execution-defendant  had  no  title,  pro- 
vided the  sale  was  made  at  the  instance  of  the  execution-plaintiff.* 
Inasmuch  as  most  execution  sales  are  made  at  the  instance  of  the 
plaintiff,  there  would  be  few  cases  in  which  the  purchaser  would  not 
be  permitted  to  detain  the  purchase  money  on  failure  of  the  title,  if 
this  decision  be  sound.  The  decision  is  apparently  at  variance  with 
the  rule  caveat  emptor  as  applied  to  execution  sales.  The  pur- 
chaser, it  is  presumed,  might,  by  examining  the  public  records,  have 
informed  himself  of  the  existence  of  the  prior  conveyance  which 
defeated  the  title. 

In  Louisiana,  where  the  civil  law  prevails,  it  seems  that  the  pur- 
chaser at  an  execution  sale  may,  if  the  title  prove  worthless,  recover 
the  purchase  money  either  from  the  plaintiff  or  the  defendant  in  the 
execution.3 

1  Maguire  v.  Marks,  28  Mo.  193;  75  Am.  Dec.  121.  Richardson  v.  McDougall, 
19  Wend.  (N.  Y.)  80.  Sanders  v.  Hamilton,  3  Dana  (Ky.),  550. 

*  Bartlett  v.  London,  7  J.  J.  Marsh.  (Ky.)  641.  The  case  is  very  brief,  and  its 
importance  justifies  complete  reproduction  here.  The  report  consists  only  of 
an  opinion  by  ROBERTSON,  Ch.  J.,  which  was  as  follows:  "The  only  question 
we  shall  consider  in  this  case  is,  whether  the  plaintiff  is  entitled  to  a  per- 
petuation of  his  injunction  to  an  enforcement  of  his  sale  bond,  in  consequence 
of  the  fact  that  the  defendant  in  the  execution  under  which  the  land  was  sold 
(for  which  the  bond  was  given),  had  no  title  to  the  land.  It  sufficiently  appears 
that  D.  C.,  the  defendant  in  the  execution,  had  conveyed  the  land  to  A.  C.,  prior 
to  the  date  of  the  execution,  and  there  is  no  proof  tending  to  show  that  the  con- 
veyance was  inoperative  or  fraudulent.  The  legal  title  must,  therefore,  be 
deemed  to  have  been  in  A.  C.  and  not  in  D.  C.  at  the  time  of  the  levy  and  sale 
It  also  sufficiently  appears  that  the  levy  and  sale  were  made  at  the  instance  of  the 
defendant  in  error,  who  was  the  plaintiff  in  the  execution.  In  such  cases  the 
purchaser,  acting  in  good  faith,  as  the  plaintiff  seems  to  have  done,  has  an 
equitable  right  to  withhold  the  consideration.  The  defendant  in  error  is  not 
without  his  remedy  against  his  original  debtor.  Wherefore  it  is  decreed  and 
ordered  that  the  decree  of  the  Circuit  Court  dissolving  the  plaintiff's  injunction 
and  dismissing  his  bill,  be  reversed  and  the  cause  remanded,  with  instructions  to 
perpetuate  the  injunction."  See,  also,  Brummel  v.  Hunt,  3  J.  J.  Marsh.  (Ky.) 
709. 

3  See  Citizens'  Bank  v.  Freitag,  37  La.  Ann.  71. 


CAVEAT   EMPTOR.  125 

§  59.  Fraudulent  representations  as  to  title.  If  a  purchaser  at 
an  execution  sale  be  induced  to  bid  by  the  fraudulent  representa- 
tions of  the  sheriff,  the  execution  creditor,  or  the  execution  debtor 
respecting  the  title,  he  will  have  his  remedy,  but  whether  by  avoid- 
ance of  the  sale,  and  the  detention  or  the  recovery  back  of  the  pur- 
chase money,  or  by  action  against  the  wrongdoer  to  recover  damages 
for  the  deceit,  is  not  harmoniously  determined  by  the  authorities. 
There  are  cases  which  hold  that  if  the  purchaser  has  been  purposely 
deceived  as  to  the  state  of  the  title  by  any  one  interested  in  making 
the  sale,  he  will  be  released  from  his  bid  and  the  sale  vacated  upon 
his  motion.1  Other  cases  hold  that  the  sheriff  is  not  the  agent  of 
the  parties  interested  in  the  land,  and  that  if  he  fraudulently  mis- 
represent the  title  he  is  personally  liable  to  the  purchaser  for  the 
damages  thence  accruing,  but  that  the  sale  itself  must  stand ; 2  also, 

'Rocksell  v.  Allen,  3  McLean  (U.  S.),  357.  Chambers  v.  Cochran,  18  Iowa, 
159.  Wingo  v.  Brown,  14  Rich.  L.  (So.  Car.)  103.  Moore  v.  Allen,  4  Bibb  (Ky.), 
41.  Webster  v.  Haworth,  8  Cal.  21,  26;  68  Am.  Dec.  287,  which  was  a  sale  on 
execution,  the  execution  creditor  falsely  representing  that  his  judgment  was 
the  first  lien  on  the  property.  The  purchaser  was  relieved  from  the  payment  of 
the  purchase  money,  the  court  saying:  "  It  is  said  that  the  maxim  caveat  emptor 
applies  to  judicial  sales,  and  that  the  defendant  (purchaser)  cannot  avail  himself 
of  the  misrepresentations  of  the  plaintiff  (execution  creditor),  as  he  had  access  to 
the  records  of  the  county,  and  might  have  informed  himself  upon  the  subject. 
Grant  that  the  maxim  caveat  emptor  applies  to  sheriffs'  sales,  it  has  never  been 
carried  to  the  extent  that  such  a  sale  could  not  be  impeached  on  the  ground  of  fraud 
or  misrepresentation.  The  maxim  only  applies  thus  far,  that  the  purchaser  is 
supposed  to  know  what  he  is  buying,  and  does  so  at  his  own  risk.  But  this  pre- 
sumption may  be  overcome  by  actual  evidence  of  fraud,  or  it  may  be  shown 
that,  in  fact,  the  party  did  not  know  the  condition  of  the  thing  purchased,  and 
was  induced  to  buy  upon  the  faith  of  representations  made  by  those  who,  by 
their  peculiar  relations  to  the  subject,  were  supposed  to  be  thoroughly  acquainted 
with  it.  The  fact  that  the  defendant  (purchaser)  might  have  examined  the  pub- 
lic records  does  not  alter  the  case.  Before  such  an  examination  could  have  been 
had,  the  sale  would  have  been  over,  and  he  would  have  lost  the  opportunity  to 
purchase.  If,  under  these  circumstances,  he  applied  to  the  judgment  creditor 
for  information,  and,  acting  upon  that  information,  was  misled  to  his  prejudice, 
he  should  be  relieved,  and  the  actual  party  in  interest  estopped  from  claiming 
an  advantage  resulting  from  his  own  misrepresentation  of  facts,  whether  will- 
fully or  ignorantly  made." 

4  Hensley  v.  Baker,  10  Mo.  157,  159,  obiter.  See  Mellen  v.  Boarman,  13  Sm.  & 
M.  (Miss.)  100.  Stoney  v.  Shultz,  1  Hill  Eq.  (So.  Car.)  464;  27  Am.  Dec.  429. 
Weidler  v.  Bank,  11  Serg.  &  Rawle  (Pa.),  134.  It  is  the  duty  of  the  sheriff  to 
announce  defects  of  title  of  which  he  is  informed,  and  if  he  conceals  them  be  and 


126  MARKETABLE  TITLE  TO  REAL  ESTATE. 

that  if  the  parties  in  interest  are  guilty  of  fraud,  the  remedy  is  bj 
action  of  deceit.1 

In  Pennsylvania  it  has  been  intimated  that  if  the  purchaser  be 
induced  by  the  sheriff  to  suppose  that  he  will  get  a  complete  legal 
title,  and  on  that  presumption  he  bids  the  full  value  of  the  clear  legal 
estate,  he  will  be  entitled  to  relief,  notwithstanding  the  rule  caveat 
em/ptor? 

§  60.  Rights  of  purchaser  from  purchaser  under  execution. 
A  purchaser  at  an  execution  sale  cannot  then,  with  the  exceptions 
already  noted,  refuse  to  pay  the  purchase  money  on  the  ground  that 
the  title  has  turned  out  to  be  worthless,  his  bid  being  presumed  to 
have  been  made  with  that  contingency  in  view.8  But  one  who  pur- 
chases from  a  purchaser  under  execution  has,  of  course,  a  right  to 
demand  a  conveyance  of  an  indefeasible  estate  in  the  absence  of 
any  agreement,  express  or  implied,  to  the  contrary.  The  circum- 
stance that  a  vendor  holds  under  a  sheriff's  deed,  if  known  to  the 
purchaser,  may,  however,  be  entitled  to  some  weight  in  settling  a 
dispute  between  the  parties  as  to  the  kind  of  title  the  purchaser 
was  to  receive. 

§  61.  Title  under  a  void  judgment.  The  title  of  a  purchaser 
at  a  sale  under  execution  may  be  worthless  because  the  judgment 
on  which  the  execution  issued  was  void  for  want  of  jurisdiction,  or 
for  some  other  reason  was  open  to  collateral  attack.  The  validity 
of  titles  under  execution  comes  in  question  in  the  ordinary  case  of 

the  sureties  on  his  official  bond  will  be  liable  to  the  purchaser.  Comm'th  T. 
Dickinson,  5  B.  Mon.  (Ky.)  506;  43  Am.  Dec.  139;  McGhee  v.  Ellis,  4  Litt.  (Ky.) 
244;  14  Am.  Dec.  124;  Wolford  v.  Phelps,  2  J.  J.  Marsh.  (Ky.)31.  In  Dwight's 
Case,  15  Abb.  Pr.  (N.  Y.)  259  (O.  S.),  a  purchaser  at  an  execution  sale  had  been 
induced  to  bid  by  the  representations  of  the  plaintiffs  attorney  that  the  title  was 
good,  the  fact  being  that  the  defendant  had  conveyed  away  the  premises  before 
the  judgment,  under  which  the  sale  was  made,  had  been  docketed.  The  pur- 
chaser was  relieved.  If  the  sheriff  sell  personal  property,  knowing  that  the  title 
is  bad,  and  fails  to  disclose  that  fact  to  the  purchaser,  he  will  be  liable  in  dam- 
ages. Harrison  v.  Shanks,  13  Bush  (Ky.),  620. 

1  Davis  v.  Murray,  2  Const.  Rep.  (So.  Car.)  143;  12  Am.  Dec.  661;  Kilgore  v. 
Peden,  1  Strobh.  L.  18,  21,  citing  Winter  v.  Dent,  MSS.  and  Towles  v.  Turner,  3 
Hill  (So.  Car.),  178;  Tucker  v.  Gordon,  4  Desaus.  Eq.  (S.  C.)  53. 

*  Auwerter  v.  Mathiot,  9  Serg.  &  R.  (Pa.)  897,  403;  Cumming's  Appeal,  23  Pa. 
St.  509,  512. 

» Ante,  §  57. 


CAVEAT  EMPTOR.  127 

vendor  and  purchaser  when  the  vendor  derives  title  through  a 
sheriffs  deed,  immediately  or  remotely,  and  in  contests  between  the 
sheriff  and  the  purchaser  at  the  execution  sale.  It  is  plain  that  a 
title  resting  upon  a  void  judgment  cannot  be  forced  upon  one  who, 
by  the  terms  of  his  contract,  express  or  implied,  may  demand  a 
marketable  title.1  It  remains  then  to  consider  whether  a  purchaser 
from  the  sheriff,  having  regard  to  the  maxim  caveat  emptor,  may 
refuse  to  complete  his  contract  or  demand  restitution  of  the  pur- 
chase money  upon  the  ground  that  the  judgment  upon  which  the 
execution  issued  was  absolutely  void.  We  have  already  seen  that 
mere  error  and  irregularities  in  judicial  proceedings  do  not  expose  a 
judgment  or  decree  to  collateral  attack,  and,  therefore,  do  not  affect 
the  title  of  a  purchaser  at  a  judicial  sale.  What  is  there  said 
applies  with  equal  force  to  titles  under  execution  sales.  The  reversal 
of  an  erroneous  judgment  does  not  affect  the  title  of  a  purchaser 
under  the  judgment2  unless  the  judgment  plaintiff  was  himself  the 
purchaser.8  Nor  do  mere  irregularities  in  the  proceedings  subse- 
quent to  judgment,  for  example,  failure  of  the  sheriff  to  make 
return  or  a  correct  return  of  the  execution  vitiate  the  title  of  the 
purchaser,4  though  there  are  matters  occurring  after  judgment  that 
will  render  a  sale  under  execution  absolutely  void,  as  will  be  seen 
hereafter.9 

1  Post,  ch.  30,  §  297. 

1  Ante,  p.  88;  Backhurst  v.  Mayo,  Dyer,  363;  Drury's  Case,  8  Coke,  281 
(early  ed.  143).  Shultz  v.  Sanders,  38  N.  J.  Eq.  154.  Williams  v.  Cummings, 
4  J.  J.  Marsh.  (Ky.)  637;  Reardon  v.  Searcy,  2  Bibb  (Ky.),  202;  Brown  v. 
Combs,  7  B.  Mon.  (Ky.)  318.  McLogan  v.  Brown,  11  111.  519.  Smith  v.  Kel- 
ley,  3  Murp.  (N.  C.)  507.  McGuire  v.  Ely,  Wright  (Ohio).  520. 

1  Freeman  on  Judgments,  §  482;  Freeman  on  Executions.  §  347.  See  ante,  p. 
89,  as  to  judicial  sales.  Bank  of  U.  S.  v.  Bank  of  Washington,  6  Pet.  (U.  S.)  19. 
Bryant  v.  Fairfield,  51  Me.  148.  Mullin  v.  Atherton,  61  N.  H.  20.  Stroud  v. 
Kasey,  25  Tex.  740;  78  Am.  Dec.  556.  Kingsbury  v.  Stoltz,  23  111.  App.  411. 
Reynolds  v.  Harris,  14  Cal.  667;  76  Am.  Dec.  459.  Turk  v.  Skiles,  38  W.  Va. 
404.  Hoe's  Case,  5  Coke,  90  (Lond.  ed.  1826,  vol.  3,  p.  188);  Goodyere  v.  Ince, 
Cro.  Jac.  246;  Eyre  v.  Woodflne,  Cro.  Eliz.  278. 

4  Forest  v.  Camp,  16  Ala.  642;  Love  v.  Powell,  5  Ala.  58;  Driver  v.  Spence,  1 
Ala.  540.  Heath  v.  Black,  7  Blackf.  (Ind.)  154;  State  v.  Salyers,  19  Ind.  482. 
Clark  v.  Lockwood,  21  Cal.  220.  Phillips  v.  Coffee,  17  111.  154;  63  Am.  Dec. 
857.  Shaffer  v.  Bolander,  4  Greene  (Io.),  201. 

•Post,  §  62.  Webber  v.  Cox,  6  T.  B.  Mon.  (Ky.)  110;  17  Am.  Dec.  127. 
Minor  v.  Natchez,  4  Smed.  &  M.  (Miss.)  602;  43  Am.  Doc.  4S8.  Hcndrickson  v. 


128  MARKETABLE  TITLE  TO  REAL  ESTATE. 

A  purchaser  at  a  sale  under  execution,  issued  on  a  void  judgment, 
acquires  no  title.1  The  weight  of  authority  seems  to  be  that  if  the 
proceedings  in  a  suit  antecedent  to  the  sale  under  execution  are  so 
defective  that  a  title  free  from  collateral  attack  by  a  party  to  the 
suit  cannot  be  assured  to  the  purchaser,  he  will  be  relieved  from  his 
bid,  if  the  purchase  money  remains  unpaid.  The  proceedings  prior 
to  the  sale  must  be  adequate  to  divest  the  title  of  the  judgment 
debtor.  "  Every  purchaser,"  says  a  recent  writer  upon  this  subject, 
"  has  a  right  to  suppose  that  by  his  purchase  he  will  obtain  the  title 
of  the  defendant  in  execution.  The  promise  to  convey  this  title  is 
the  consideration  upon  which  his  bid  is  made.  If  the  judgment  is 
void,  or  if,  from  any  cause,  the  conveyance  when  made  cannot  invest 
him  with  the  title  held  by  the  parties  to  the  suit  or  proceeding, 
then  his  bid  or  other  promise  to  pay  is  without  consideration,  and 
cannot  be  enforced  against  him.  He  may  successfully  resist  any 
action  for  the  purchase  money,  whether  based  upon  the  bid  or  upon 
some  bond  or  note  given  by  him."2  These  principles  address  them- 
selves to  our  sense  of  equity  and  right,  and  many  cases  may  be 
found  which  sustain  them.8  But  it  is  not  to  be  denied  that  they 
strongly  encroach  upon,  and  are,  perhaps,  inconsistent  with  the 
doctrine  caveat  emptor  as  applied  to  execution  sales.  Want  of  juris- 
diction rendering  the  judgment  void  must  appear  upon  the  face  of 
the  proceedings  resulting  in  the  judgment,  and  the  purchaser,  by 
examining  the  proceedings,  would  be  advised  of  the  defect.  If  he 

Railroad  Co.,  34  Mo.  188;  84  Am.  Dec.  76.  Smith  v.  Kelley,  3  Murph.  (N.  C.) 
507.  Jackson  v.  Rosevelt,  13  Johns.  (N.  Y.)  97.  Riddle  v.  Bush,  27  Tex.  675. 

1  Roberts  v.  Stowers,  7  Bush  (Ky.),  295.     Collins  v.  Miller,  64  Tex.  118. 

*  Freeman  Void  Jud.  Sales,  §  48.  Bynum  v.  Govan,  (Tex.)  29  S.  W.  Rep.  1119; 
Halsey  v.  Jones,  (Tex.)  25  S.  W.  Rep.  696.  The  same  principles  have  been 
applied  in  respect  to  probate  and  judicial  sales  proper.  See  those  titles,  ante, 
this  chapter. 

•Boy kin  v.  Cook,  61  Ala.  472,  the  court  saying:  "  If  the  sale  be  void  then  no 
one  is  bound  by  the  purchase;  and  unless  the  plaintiff  actually  realizes  the  pro- 
ceeds the  debt  remains  unsatisfied."  Thrift  v.  Fritz,  77  111.  55.  This,  however, 
was  a  judicial  sale.  Burns  v.  Ledbetter,  56  Tex.  282.  The  cases  of  Dodd  v.  Nelson, 
90  N.  Y.  243,  and  Verdin  v.  Slocum,  71  N.  Y.  345,  are  cited  to  the  text  proposi- 
tion in  Freeman  on  Void  Jud.  Sales,  §  48,  but  it  will  be  found  on  examination 
that  these  were  judicial  or  quasi  judicial  sales,  in  which  the  purchaser  was  merely 
resisting  a  confirmation  of  the  sale,  on  the  ground  that  the  title  was  defective  — 
a  right  which  is  conceded  to  him,  we  believe,  everywhere. 


CAVEAT  EMPTOR.  129 

chooses  to  bid  without  examining  the  record  he  must,  if  the  rule 
caveat  emptor  is  to  be  strictly  applied,  accept  the  risk  of  eviction 
and  complete  his  purchase.  It  is  as  easy  for  him  to  inform  himself 
as  to  want  of  jurisdiction  in  the  court  to  render  the  judgment  under 
which  the  sheriff  sells,  as  it  is  to  discover  a  want  of  title  in  the  exe- 
cution defendant,  and  no  reason  is  perceived  why  he  should  be  held  to 
his  bargain  in  the  one  case  and  relieved  in  the  other.  It  would  seem 
more  consistent  to  relieve  him  in  both  cases,  or  to  hold  him  bound 
in  both.  In  Pennsylvania  a  purchaser  at  a  sheriff's  sale  may  move 
to  have  to  have  the  sale  set  aside  at  any  time  before  the  deed  is  exe- 
cuted and  delivered.  This  was  done  in  a  case  in  which  the  purchaser 
at  a  sale  under  execution  on  a  void  judgment,  bid  to  protect  his 
interests  as  a  mortgagee  of  the  premises.  The  sale  was  set  aside  and 
the  purchaser  relieved  from  his  bid.1 

§  62.  Title  under  a  void  execution  sale.  The  judgment  on 
which  an  execution  is  issued  may  be  unimpeachable,  and  the  title  of 
the  defendant  may  be  indefeasible,  yet,  for  some  matter  occurring 
after  the  rendition  of  judgment,  the  title  of  a  purchaser  under  the 
execution  may  be  worthless.  The  reports  abound  with  cases  in 
which  the  judgment  debtor,  or  those  claiming  under  him,  have 
recovered  the  premises  from  the  execution  purchaser  or  his  assigns, 
upon  the  ground  that  the  sale  itself,  without  regard  to  the  validity 
of  the  antecedent  judgment,  was  void.  This  has  occurred,  to  men- 
tion some  of  the  most  notable  instances,  where  a  sale  has  been  made 
under  an  execution  levied  after  return  day ; 2  under  an  execution 
against  "  William  V.,"  on  a  judgment  against  "  H.  W.  V. ; "  *  under 
execution  issued  after  the  death  of  the  execution  defendant,  the 
judgment  not  having  been  revived ; 3  where  an  appraisement  had  not 
been  made  or  waived,  and  the  land  sold  for  less  than  its  appraisable 

1  Connelly  v.  Philadelphia,  86  Pa.  St.  110;  Shakespeare  v.  Delaney,  86  Pa.    St. 
108. 

*  Freeman  on  Executions,  §§  58,  106,  and  cases  cited.     Hawes  v.  Rucker,  (Ala.) 
11  So.  Rep.  85;  Morgan  v.  Ramsey,  15  Ala.  190;  Smith  v.  Munday,  18  Ala.  182; 
53  Am.  Dec.  221.     Jefferson  v.  Curry,  71  Mo.  85.     Cain  v.  Woodward,  (Tex.)  12 
S.  W.  Rep.  319;  Terry  v.  Cutler,  4  Tex.  Civ.  App.  570;  23  S.  W.  Rep.  539. 
Contra,  Jackson  v.  Rosevelt,  13  Johns.  (N.  Y.)  97. 

'Morris  v.  Balkham,  75  Tex.  Ill;  12  S.  W.  Rep.  970. 

*  Cunningham  v.  Buck,  45  Ark.  267. 

17 


MARKETABLE  TITLE  TO  REAL  ESTATE. 

valne ; 1  where  the  sheriff  sold  the  fee  simple  instead  of  first  offering 
the  rents  and  profits  for  seven  years,  as  required  by  statute ;  *  where 
the  sheriff  sold  premises  in  the  hands  of  a  receiver  without  leave  of 
the  court ;  *  where  the  sheriff  sold  upon  a  day  other  than  one  pre- 
scribed by  law ;  *  where  the  sale  was  made  by  the  sheriff  of  A. 
county  under  an  execution  directed  to  the  sheriff  of  B.  county ; 5 
where  the  sale  was  made  under  an  execution  issued  on  a  judgment 
that  had  been  paid,  though  not  satisfied  of  record,6  and  under  an 
execution  issued  on  a  justice's  judgment  which  was  not  docketed 
until  it  had  become  barred  by  limitation.7  Numerous  other  instances 
of  void  sales  under  execution  will  be  found  in  the  reports  of  the 
several  States. 

The  rule  that  a  sale  under  a  void  judgment  does  not  bind  the 
purchaser,  applies  with  equal  force,  it  is  conceived,  where  the  sale 
itself  is  void  because  of  some  matter  occurring  subsequent  to  the 
judgment,  or  because  the  officer  had  no  authority  to  sell.  Upon 
this  point  it  has  been  said  by  an  able  judge :  "  The  general  rule 
very  clearly  is  that  there  is  no  implied  warranty  in  sales  made  by  a 
sheriff  or  other  ministerial  officer  in  his  official  capacity,  but  that 
applies  exclusively  to  the  quality  and  property  of  the  thing  sold. 

1  Capital  Bank  v.  Huntoon,  35  Kans.  577;  1  Pac.  Rep.  369,  and  cases  there 
cited.  See  Freeman  Void  Jud.  Sales,  §  27.  Contra,  Shaffer  v.  Bolander,  4 
Greene  (Io.),  201. 

'Gantly  v.  Ewing,  3  How.  (U.  S.)  707,  disapproving  Doe  v.  Smith,  4  Blackf. 
(Ind.)228. 

•French  v.  Pratt,  7  N.  Y.  Supp.  240;  otherwise,  if  the  judgment  on  which 
the  execution  issued  was  rendered  before  the  appointment  of  the  receiver.  In 
re  Loos,  50  Hun  (N.  Y.),  67;  3  N.  Y.  Supp.  383;  Bank  v.  Risley,  19  N.  Y.  389. 

4Lowdermilk  v.  Corpenning,  101  N.  Car.  649;  8  8.  E.  Rep.  117,  and  cases  there 
cited.  But  see  contra,  Brown  v.  Christie,  27  Tex.  75;  84  Am.  Dec.  607. 

•Terry  v.  Cutler,  4  Tex.  Civ.  App.  70;  23  8.  W.  Rep.  539. 

•Shaffer  v.  McCracken,  (Iowa)  58  N.  W.  Rep.  510.  Norgren  v.  Edson,  51  Minn. 
567;  53  N.  W.  Rep.  876.  Hardin  v.  Clark,  1  Tex.  Civ.  App.  565;  21  S.  W.  Rep. 
977.  If  a  judgment  has  heen  satisfied,  though  not  canceled  of  record,  a  bonafide 
purchaser  under  an  execution  issued  on  the  judgment  will  get  no  title.  Wood  v. 
Colvin,  2  Hill  (N.  Y.),  566;  38  Am.  Dec.  598;  Carpenter  v.  Stilwell,  11  N.  Y.  61; 
Craft  v.  Merrill,  14  N.  Y.  456.  He  succeeds  merely  to  the  position  of  the  judgment 
creditor,  subject  to  all  equities  in  favor  of  the  judgment  debtor,  without  regard 
to  the  question  of  notice.  Frost  v.  Yonkers  Sav.  Bank,  70  N.  Y.  553;  26  Am. 
Rep.  627.  See  contra,  Nichols  v.  Dissler,  31  N.  J.  L.  461;  86  Am.  Dec.  219. 

» Cowen  v.  Withrow,  (N.  Car.)  19  8.  E.  Rep.  645. 


CAVEAT  EMPTOB,  131 

Thus,  in  a  sale  made  by  a  sheriff  of  goods  taken  in  execution,  there 
is  no  implied  warranty  on  the  part  of  the  sheriff  that  the  goods  are 
intrinsically  worth  anything,  or  that  the  defendant  has  any  property 
in  them.  He  only  undertakes  to  sell  the  interest  which  the  defendant 
may  happen  to  have  in  the  goods,  in  the  condition  in  which  they  are. 
But  the  principle  does  not  apply  where  the  sheriff  or  other  officer 
assumes  an  authority  where  none  is  given  by  law.  It  will  hardly 
be  questioned  that  if  a  sheriff  induce  persons  to  purchase  at  his  sale 
by  pretending  that  he  has  the  authority  of  law  for  the  sale,  when  in 
truth  he  has  not,  the  purchaser  must  be  without  remedy.  It  is  a 
fraud  for  which  he  would  be  responsible,  and  the  principle  applies 
equally  where  he  acts  upon  a  void  authority.  In  any  case  the 
sheriff  is  bound  to  show  that  he  is  legally  authorized  to  do  that 
which  he  assumes  to  do  virtute  qflicii" 1  It  is  to  be  here  observed 
that  if  an  execution  defendant,  or  one  who  succeeds  to  his  rights, 
having  grounds  upon  which  the  sale  under  execution  may  be  col- 
laterally attacked,  be  guilty  of  laches  in  the  assertion  of  that  right, 
so  that  by  reason  of  his  negligence  the  purchaser  or  his  assignees  so 
alter  their  situation  with  respect  to  the  property  that  to  vacate 
the  sale  would  inflict  great  injury  upon  them,  the  sale  will  be  per- 
mitted to  stand.2  So,  also,  if  the  defendant  accept  the  surplus  of 
the  proceeds  of  the  sale,  after  the  execution  has  been  satisfied,  such 
acceptance  being  deemed  a  ratification  of  the  sale,  or  at  least  a 
waiver  of  the  right  to  attack  the  sale.*  A  purchaser  at  a  sale  under 
execution  cannot  be  affected  by  secret  frauds  and  irregularities  of 
which  he  had  no  notice.4  And,  generally,  it  may  be  said  that  a  pur- 
chaser from  one  who  holds  under  a- sheriff's  deed  cannot  be  affected 
by  any  defect  or  invalidity  in  the  sale  itself  or  in  the  proceedings 
anterior  thereto  of  which  he  had  no  notice.  These  propositions 
being  sound,  it  is  plain  that  the  purchaser  under  execution  could  not 
seek  relief  from  his  bid  in  a  case  in  which  he  might  successfully 
resist  a  collateral  attack  upon  the  title  as  a  purchaser  without  notice 
of  the  matters  and  things  upon  which  the  attack  is  based. 

1  Stoney  v.  Shultz,  1  Hill  Eq.  (S.  C.)  464;  37  Am.  Dec.  429. 

1  Regney  v.  Small,  60  111.  416.  Capital  Bank  v.  Huntoon.  35  Kans.  577;  11 
Pac.  Rep.  772. 

•  Freeman  Void  Jud.  Sales,  §  50.  Huffman  v.  Gaines,  47  Ark.  226;  1  8.  W. 
Rep.  100. 

•Freeman  Void  Jud.  Sales,  §  41. 


132  MARKETABLE  TITLE  TO  KEAL,  ESTATE. 

§  63.  TAT  PAT/PS  The  maxim  caveat  emptor  applies  with  great 
strictness  to  tax  sales.1  Tax  titles  are  esteemed  the  most  uncertain 
of  all,  and  are  universally  regarded  with  suspicion  and  distrust ; 
hence  it  is  but  seldom  that  property  sold  for  taxes  brings  more  than 
the  amount  of  the  taxes  due.  The  purchaser  buys  at  a  mere  nominal 
price,  and  if  he  gets  nothing  by  his  purchase,  he  has,  in  the  absence 
of  statutory  provisions,  no  recourse  upon  any  one.  In  some  of  the 
States,  however,  he  is  by  statute  in  a  manner  subrogated  to  the  bene- 
fit of  the  tax  lien  discharged  with  the  money  arising  from  the  sale ; 
the  person  seeking  to  have  the  sale  vacated  being  required  as  a  con- 
dition of  relief  to  reimburse  the  purchaser  .to  the  extent  of  the 
taxes  legally  chargeable  on  the  land,  with  costs  of  sale  and  interest. 
In  other  States,  in  case  of  a  sale  void  for  errors  and  omissions  in 
the  proceedings  the  purchaser  is  allowed  to  have  recourse  upon  the 
city  or  county  by  whose  authority  the  sale  and  conveyance  was 
made.2  .  • 

The  rule  caveat  emptor  has  been  held  to  extend  not  only  to  pur- 
chasers at  tax  sales,  but  to  transferees  of  the  title  so  acquired. 
Thus,  it  has  been  held  that  the  assignor  of  a  tax  lease  given  upon  a 
sale  for  unpaid  taxes,  warrants  nothing  more  than  the  genuineness 
of  the  lease  and  his  ownership.  It  is  presumed  that  the  assignee 
took  the  title  at  his  own  risk.8 

§  64.  SALES  BY  TRUSTEES,  ASSIGNEES,  ETC.  The  rule  caveat 
emptor  has  been  held  to  apply  to  sales  under  trusts  for  the  payment 
of  debts.  The  trustee,  it  has  been  said,  sells  merely  such  title  as  is 
vested  in  him  by  the  deed  creating  the  trust,  and  there  is  no  implied 
warranty  on  his  part  that  the  title  is  good,  so  that  if  the  title  be  in 
fact  defective,  the  purchaser  can  neither  detain  the  unpaid  purchase 
money  nor  recover  back  that  which  has  been  paid.4  Such  a  sale 

1  Blackwell  on  Tax  Titles,  §  994;  Black,  on  Tax  Titles  (2d  ed.),  §  463.  The 
cases  and  authorities  will  be  f6und  collected  in  these  works.  The  limits  of  this 
treatise  will  not  admit  of  their  consideration  here  at  length. 

8  Black,  on  Tax  Titles  (2d  ed.),  §§  464,  477,  et  seq.  ;  Logansport  v.  Case,  124  Ind. 
254;  24  K  E.  Rep.  88;  Watkins  v.  Winings,  102  Ind.  330;  1  N.  E.  Rep.  638; 
Parker  v.  Goddard,  81  Ind.  294.  Russell  v.  Hudson,  28  Kans.  99.  Merriam  v. 
flauen,  23  Neb.  217.  Hart  v.  Smith,  44  Wis.  213. 

3  Boyd  v.  Schlisenger,  59  N.  Y.  301,  distinguished  in  Bensel  v.  Gray,  80  N.  Y. 
517. 

4  Rawle  Covts.  (5th  ed.)  §  338  n.;  26  Am.  &  Eng.  Encyc.  of  L.  934,  940;  Sutton 
v.  Sutton,  5  Grat.  (Va.)  234;  56  Am.  Dec.  109;  Peterman  v.  Laws,  6  Leigh  (Va.), 


CAVEAT  EMPTOB.  133 

stands  upon  the  same  footing  as  would  a  sale  by  the  trust  grantor 
himself,  with  express  disclaimer  of  good  title.  But  where  the 
trustee,  selling  at  public  auction,  announces  that  the  land  is  sold  free 
and  clear  of  all  incumbrances,  and  it  afterwards  appears  that  incum- 
brances  exist,  it  has  been  held  that  the  purchaser  will  be  relieved.1 
It  seems,  however,  that  if  the  conveyance  to  the  trustee  contains 
covenants  for  title,  the  benefit  of  them  will  pass  to  the  purchaser  at 
the  trustee's  sale,  and  he  may  maintain  an  action  thereon  against  the 
grantor.2  And  if  the  sale  be  for  any  reason  void,  other  than  for 
fraud  on  the  part  of  the  purchaser,  he  will  be  subrogated  to  the 
rights  of  the  creditor  secured  by  the  trust.3  If  by  mistake  the  pur- 
chaser gets  materially  less  land  than  the  trustee  purported  to  sell,  it 
has  been  held  that  he  cannot  recover  back  such  part  of  the  purchase 
money  as  may  have  been  paid,  from  the  trustee  or  the  beneficiary 
of  the  trust,  but  that  he  may  apply  to  the  court  for  a  rescission  of 

529.  Fleming  v.  Holt,  12  W.  Va.  143.  In  this  case,  the  court,  after  observing 
that  the  purchaser  at  a  judicial  sale,  that  is,  a  sale  by  a  commissioner  of  the 
court,  might  object  to  the  title  at  any  time  before  confirmation  of  the  sale,  con- 
tinued: "  A  sale  by  a  trustee,  like  a  sale  by  a  commissioner,  is  without  warranty, 
but  there  is  this  obvious  difference  between  the  two:  The  contract  of  the  pur- 
chaser at  a  sale  by  the  commissioner  is  incomplete  till  his  bid  is  accepted  by  the 
court,  who  is  the  real  seller  of  the  property,  the  commissioner  of  sale  being  the 
mere  agent  of  the  court.  The  bid  is  accepted  by  the  court  by  the  confirmation 
of  the  sale;  after  that,  though  the  purchaser,  before  the  deed  is  made  to  him, 
finds  out  that  the  title  to  the  land  is  defective,  he  is,  nevertheless,  bound  to 
receive  it  and  pay  the  purchase  money.  In  a  sale  by  a  trustee,  the  court  does 
not  accept  the  bid  of  the  purchaser,  but  it  is  accepted  by  the  auctioneer  when 
he  knocks  the  land  down,  and  on  the  making  by  him  of  a  memorandum  of  the 
sale  and  its  terms  signed  by  the  auctioneer,  the  contract  for  the  sale  is  as  com- 
plete as  the  contract  for  the  sale  made  by  a  commissioner  is  when  the  court 
accepts  the  bid  by  confirming  the  sale.  After  such  knocking  down  of  the  land 
by  the  auctioneer  and  the  making  of  the  memorandum,  the  purchaser  must 
accept  the  deed  and  pay  the  purchase  money,  though  he  does  find  the  title 
defective.  He  must,  if  he  wishes  to  do  so,  investigate  the  title  in  this  case,  as 
in  the  other,  while  the  contract  is  incomplete;  that  is,  in  the  last  case,  before  the 
land  is  knocked  down  to  him."  In  other  words,  he  must  examine  the  title  before 
he  bids,  and  if  he  bids  without  examining  the  title,  he  takes  the  risk  of  the 
failure  of  title. 

1  Schaeffer  v.  Bond,  70  Mo.  480. 

'This,  upon  the  principle  that  any  kind  of  a  conveyance  will  pass  the  benefit 
of  covenants  for  title.  Post,  "  Covenant  of  Warranty,"  §  157. 

'Clarke  v.  Wilson,  56  Miss.  753;  Bonner  v.  Lessly,  61  Miss.  392. 


134  MARKETABLE  TITLE  TO  EEAL  ESTATE. 

the  contract,  and  to  have  the  sale  set  aside,  thereby  relieving  him 
from  the  payment  of  deferred  installments  of  the  purchase  money.1 

The  rule  caveat  emptor  applies  also  to  sales  under  assignments  to 
secure  the  payment  of  debts,  and  to  sales  by  assignees '  in  bank- 
ruptcy.2 It  has  been  held,  however,  that  if  assignees  in  bankruptcy 
advertise  in  the  usual  way,  that  is,  without  stating  that  they  will  sell 
only  such  estate  as  the  bankrupt  has,  they  cannot  compel  specific 
performance  if  the  title  be  bad.3  In  New  York  it  has  been  held 
that  there  is  an  implied  contract  at  a  sale  by  an  assignee  in  bank- 
ruptcy that  the  contract  is  good,  but  if  the  purchaser  accept  a  con- 
veyance without  covenants,  he  will  be  without  relief.4 

Sales  by  guardians  are  made  only  in  pursuance  of  judicial  author- 
ity, and  are  subject  to  confirmation  by  the  court.  The  purchaser 
will  be  entitled  to  a  reference  if  the  title  is  doubtful,  and,  of  course, 
may  resist  confirmation  of  the  sale  if  the  title  be  defective.5  After 
the  sale  is  confirmed  it  is  apprehended  upon  general  principles  that 
the  rule  caveat  emptor  applies,  at  least  so  far  as  to  prevent  restitution 
of  the  purchase  money  upon  the  ground  of  a  paramount  title  out- 
standing in  a  stranger.  The  purchaser  may  object  that  a  guardian's 
sale,  under  which  the  vendor  claims  title,  was  made  without  notice 
to  the  wards  of  the  proceeding  in  which  the  authority  to  sell  was 
obtained.6  But  the  validity  of  a  sale  by  a  foreign  guardian,  who 
has  complied  with  the  requirements  of  the  statute  in  making  the 
sale,  cannot  be  collaterally  attacked  by  the  purchaser  in  an  action  for 
the  purchase  money.7 

§  65.  SUBROGATION  OF  PURCHASER  AT  JUDICIAL  AND  MIN- 
ISTERIAL SALES. —  Subrogation  where  sale  is  void.  We  have  seen 
that  a  purchaser  who,  by  the  terms  of  his  contract,  express  or 

1  Coons  v.  North,  27  Mo.  73. 

•  Ante,  this  section.     As  to  sales  by  assignees  in  bankruptcy,  post,  this  section 
and  cases  cited. 

•McDonald  v.  Hanson,  12  Ves.  277;  White  v.  Folzambe,  11  Ves.  344;  Deverell 
T.  Bolton,  18  Ves.  511,  overruling  Pope  v.  Simpson,  5  Ves.  145. 
•Clark  v.  Post,  113  N.  Y.  17;  20  N.  E.  Rep.  573. 

•  In  re  Browning,  2  Paige  Ch.  (N.  Y.)  64.    In  this  case  the  title  was  referred 
though  the  sale  had  been  confirmed.     See,  also,  Brown  v.  Christie,  27  Tex.  78; 
84  Am.  Dec.  607. 

•  Shipp  v.  Wheless,  33  Miss.  647.     Wiley  v.  White,  3  Stew.  &  P.  (Ala.)  355. 
'Pferrman  v.  Wattles,  86  Mich.  254;  49  N.  W.  Rep.  40. 


CAVEAT  IMPTOR,  135 

implied,  is  entitled  to  a  conveyance  of  the  premises  free  from 
incumbrances,  may,  for  the  protection  of  his  estate,  pay  off  any  lien 
or  charge  upon  the  property,  and  be  subrogated  to  the  benefit  thereof 
against  the  vendor ;  he  may  either  deduct  the  amount  so  paid  from 
the  purchase  money  remaining  due,  or,  if  the  purchase  money  has 
been  paid,  he  may  enforce  the  lien  or  charge  against  other  estate  of 
the  vendor.1  This  right  is  given  by  law,  and  is  in  nowise  rested  upon 
any  implied  contract  between  the  parties.2  But  the  equitable  doc- 
trine of  subrogation  as  enforced  in  behalf  of  a  purchaser  at  a  judi- 
cial or  ministerial  sale,  is  much  more  restricted  in  its  application. 
He  cannot  discharge  incumbrances  on  the  property,  and  assert  them 
against  the  creditor  at  whose  instance  the  sale  was  made,  by  deduct- 
ing the  amount  so  expended  from  the  unpaid  purchase  money,  nor, 
as  a  general  rule,  enforce  them  against  the  estate  of  the  debtor 
whose  liability  was  solved  by  the  proceeds  of  the  sale.  If  he  is  sub- 
rogated at  all,  it  is  to  the  rights  of  the  creditor  at  whose  instance 
the  sale  was  made,  and  not  to  the  rights  of  a  stranger,  whose  claim 
he  satisfies  in  order  to  protect  his  title.  We  shall,  however,  consider 
the  subject  in  the  two  following  aspects :  (1)  "Where  the  sale  was 
void,  and  the  proceeds  have  been  applied  to  the  discharge  of  some 
lien  upon  the  premises,  or  of  some  liability  of  the  debtor.  (2) 
Where  the  sale  was  valid,  and  the  purchaser  has  been  evicted  from 
the  premises  by  an  adverse  claimant,  or  compelled  to  remove  prior 
incumbrances  in  order  to  protect  his  title. 

Subrogation  of  a  purchaser  at  a  void  judicial  or  ministerial  sale 
may  be  accomplished  either  by  allowing  the  purchaser  to  enforce 
against  the  claimants  of  the  estate,  the  specific  lien,  charge,  debt  or 
liability  for  the  collection  of  which  the  invalid  sale  was  made,  or  by 
compelling  such  claimants  to  refund  to  the  purchaser,  as  a  condition 
precedent  to  the  recovery  of  the  estate,  the  purchase  money  paid  by 
him  at  the  sale,  and  applied  to  the  satisfaction  of  such  debt  or  lien. 
In  this  way  substantial  justice  is  done  between  all  parties,  and  the 
effect  is  especially  beneficial  to  the  debtor  and  the  creditor,  for  such  a 
practice  lessens  the  danger  of  loss  to  the  purchaser,  and  encourages 
bidding  at  judicial  and  ministerial  sales.  Besides,  "  nothing  can  be 
more  unjust  than  to  permit  a  debtor  to  recover  back  his  property, 

1  Post,  §  204. 
'  Sheld.  Sub.  §  1. 


MARKETABLE  TITLE  TO  REAL  ESTATE. 

because  the  sale  was  irregular,  and  yet  allow  him  to  profit  by  that 
irregular  sale  to  discharge  his  debts."  1 

There  are  cases  which  decide  that  a  purchaser  at  a  void  judicial 
or  ministerial  sale  cannot  be  subrogated  to  the  benefit  of  the  debt 
or  lien  discharged  by  the  proceeds  of  the  sale,  some  upon  the  ground 
that  the  rule  caveat  emptor  denies  the  purchaser  relief ; 2  some  upon 
the  ground  that  payment  of  the  debt  with  the  proceeds  of  the  sale 
is  an  absolute  satisfaction  thereof,  and  leaves  nothing  to  which  the 
purchaser  can  claim  to  be  subrogated,8  and  some  upon  the  ground 
that  the  purchaser  is  a  mere  volunteer  and  entitled  to  no  considera- 
tion.4 It  is  not  to  be  denied  that  the  doctrine  is  incompatible  with 
a  strict  application  of  the  rule  caveat  emptor,  for  in  most  cases  the 
purchaser  would  be  advised,  upon  diligent  inquiry,  that  the  steps 
necessary  to  a  valid  sale  had  not  been  taken.  The  case  is  merely 
one  in  which  the  rule  caveat 5  emptor  is  subordinated  to  the  higher 

1  Dufour  v.  Camfranc,  11  Mart.  (La.)  615;  13  Am.  Dec.  360. 

*  Frost  v.  Atwood,  73  Mich.  67,  the  court  saying:  "Every  one  is  bound  to 
satisfy  himself  of  the  authority  under  which  a  judicial  sale  is  made  and  buys  at 
his  peril.  It  would  be  a  contradiction  in  terms  to  hold  a  sale  void  for  want  of 
authority  to  make  it  and  yet  valid  enough  to  create  a  lien  for  the  purchase 
money.  Where  individuals  sell  their  own  lands  and  receive  pay  for  them,  there 
can  be  no  want  of  authority,  and  the  question  is  only  one  of  title.  But  a  sale 
made  by  quit-claim  deed  without  covenants  and  without  fraud  or  misrepresenta- 
tion does  not  entitle  the  purchaser  to  reclaim  his  money.  This  bill  is  an  attempt 
not  only  to  give  to  a  void  probate  sale  the  effect  of  a  warranty,  but  to  go  further 
and  bind  the  land  itself,  which  was  sold  without  right,  for  its  repayment." 
Bishop  v.  O'Conner,  69  111.  431,  distinguishing  Kinney  v.  Knoebel,  51  111.  112; 
Bassett  v.  Lockwood,  60  111.  164.  Salmond  v.  Price,  13  Ohio,  383;  43  Am.  Dec. 
204. 

•Richmond  v.  Marston,  15  Ind.  134.  Disapproved  in  Muir  v.  Berkshire,  52 
Ind.  149. 

^Richmond  v.  IVIarston,  15  Ind.  134.  Disapproved  in  Muir  v.  Berkshire,  52 
Ind.  149. 

8  Valle  v.  Fleming,  29  Mo.  163;  77  Am.  Dec.  557,  the  court  saying  that  the  law 
bases  "  the  equitable  rights  of  the  purchaser,  not  upon  his  knowledge  or  igno- 
rance of  the  condition  of  the  title,  but  upon  the  ground  that  the  purchaser  has 
discharged  a  judgment  against  the  estate  or  debtor  for  which  the  one  or  the  other 
stood  chargeable  by  a  purchase  of  property  made  under  process  of  the  law,  and, 
therefore,  has  the  equitable  right  to  be  reimbursed  out  of  the  estate  or  property 
of  the  debtor."  In  Wilson  v.  Holt,  83  Ala.  528;  3  So.  Rep.  321,  it  was  doubted 
whether  the  rule  caveat  emptor  would  extend  to  defects  which  would  not  be  dis- 
closed by  an  examination  of  the  claim  of  title  or  to  secret  equities  which  could 
not  have  been  discovered  by  the  exercise  of  ordinary  diligence. 


CAVEAT  EMPTOR.  137 

equities  of  the  purchaser.  The  objection  that  the  lien  or  debt  is  dis- 
charged, and  that  there  is  nothing  to  which  the  purchaser  can  be 
subrogated,  appears  merely  sophistical,  and  would,  if  sound,  destroy 
the  doctrine  of  subrogation  in  any  case,  and  the  argument  that  the 
purchaser  is  a  volunteer  would  seem  to  deserve  as  little  considera- 
tion, for  the  sale  is  treated  as  an  equitable  assignment,  or  rather  an 
assignment  by  operation  of  law,  of  all  the  rights,  powers  and  privi- 
leges of  the  creditor  in  the  premises.1  The  purchaser  obviously 
does  not  stand  upon  the  same  ground  as  one  who  officiously 
pays  the  debt  of  another.  Accordingly  the  weight  of  authority 
in  America  has  established  the  rule  that  an  innocent  purchaser  at  a 
sheriff's2  or  administrator's3  sale,  or  other  ministerial  or  judicial 

1  Brobst  v.  Brock,  10  Wall.  (U.  S.)  519.  Robinson  v.  Ryan,  25  N.  Y.  320; 
Jackson  v.  Bowen,  7  Cow.  (N.  Y.)  13;  Stackpole  v.  Robbins,  47  Barb.  (N.  Y.) 
212.  Seller  v.  Lingerman,  24  Ind.  264;  Muir  v.  Berkshire,  52  Ind.  149;  Carver 
v.  Howard,  92  Ind.  172.  Gilbert  v.  Cooley,  Walker's  Ch.  (Mich.)  494.  *  Johnson 
v.  Robertson,  34  Md.  165,  a  case  in  which  a  foreclosure  sale  was  declared  void 
for  want  of  jurisdiction  of  the  persons  of  the  defendants.  The  court,  by 
ALVEY,  J.,  said:  "The  purchaser  should  be  protected  so  far  that  if  he  has  paid 
the  purchase  money,  and  it  has  been  applied  to  the  payment  of  the  mortgage 
debt,  or  so  far  as  he  has  paid  and  applied  the  purchase  money,  he  should  be  sub- 
rogated to  the  mortgagee,  and  the  mortgage,  to  the  extent  of  such  payment, 
treated  as  assigned  to  him. 

*  Sheldon  on  Subrogation.  §  38;  24  Am.  &  Eng.  Encyc.  of  L.  261;  24  id.  571; 
Freeman  Void  Jud.  Sales,  §  52.     Beeson  v.  Beeson,  9  Pa.  St.  279;    Jackson  v. 
McGinniss,  14  Pa.  St.  331.     Webb  v.  Coons,  11  La.  Ann.  252.     Howard  v.  North, 
6  Tex.  290;  51  Am.  Dec.  769;  Andrews  v.  Richardson,  21  Tex.  287;  Morton  v. 
Welborn,  21  Tex.  772;  Stone  v.  Darnell,  25  Tex.  Supp.  430;  78  Am.  Dec.  582; 
Johnson  v.  Caldwell,  38  Tex.  217;  McDonough  v.  Cross,  40  Tex.  285;  Burns  v. 
Ledbetter,  56  Tex.  282;  Jones  v.  Smith,  55  Tex.  383.     O'Kelly  v.  Gholston,  (Ga.) 
15  8.  E.   Rep.  123.     Rev.  St.  Ind.  1881,  §  1084;  Reilly  v.  Burton,  71  Ind.  118; 
Ray  v.  Detchon,  79  Ind.  56;  Short  v.  Sears,  93  Ind.  505;  Gillette  v.  Hill,  102  Ind. 
531;  1  N.  E.  Rep.  551;  Paxton  v.  Sterne,  127  Ind.  2S9;    26  N.  E.  Rep.  557. 
Bentley  v.  Long,  1  Strobh.  Eq.  (So.  Car.)  43;  47  Am.  Dec.  523.     Sands  v.  Lyn- 
ham,   27  Grat.   (Va.)  291;  21  Am.  Rep.  348,  which,  however,  was  a  sale  under 
decree  in  chancery  to  enforce  a  judgment  lien.     Brown  v.  Brown,  73  Iowa,  430. 
Goring  v.  Shreve,  7  Dana  (Ky.),  64.     McHany  v.  Schenck,  88  111.  357.     Spindler 
v.  Atkinson,  3  Md.  423;  56  Am.  Dec.  755;  Campbell  v.  Lowe,  9  Md.  500;  66  Am. 
Dec.  339. 

*  Sheld.  on  Subrogation,  §  209;  Woerner's  Am.  Law  of  Adm.  §  485.     Davis 
v.  Gaines,  104  U.  S.  386.     Blodgett  v.  Hitt,  29  Wis.  169;  Winslow  v.  Crowell,  32 
Wis.  639.     Halsey  v.  Jones,  86  Tex.  488;  25  S.  W.  Rep.  696.     Neel  v.  Carson, 
47  Ark.  421;  2  S.  W.  Rep.  107.     Rev.  St.  Ind.  1881,  §  1084;  Walton  v.  Cox,  67 
Ind.  164;  Duncan  v.  Gainey,  108  Ind.  579;  9  N.  E.  Rep.  470;  Stutts  v.  Browne, 

18 


138  MARKETABLE  TITLE  TO  REAL  ESTATE. 

sale,1  will,  if  such  sale,  for  any  cause,  prove  invalid,  be  subrogated  to 
all  the  rights,  remedies  and  privileges  of  the  creditor  at  whose 
instance  such  sale  was  made,  and  that  the  purchaser  will  have  a  lien  on 
the  land  for  his  reimbursement  if  he  be  in  possession.2  In  some  of 
the  States  this  right  is  secured  to  the  purchaser  by  statute.3  A  pur- 
chaser at  a  probate  sale  will  not  be  substituted  to  the  benefit  of  the 
claim  against  the  heirs  or  devisees  if  the  land  sold  was  not  in  fact 
liable  to  the  satisfaction  of  such  claim.  The  purchaser  cannot 
acquire  any  rights  in  the  premises  greater  than  those  of  the  executor 
or  administrator.4  If  the  admistrator  misappropriate  the  purchase 

112  Ind.  370;  14  N.  E.  Rep.  230.  Hudgin  v.  Hudgin,  6  Grat.  (Va.)  320;  52  Am. 
Dec.  124;  Sands  v.  Lynham,  27  Grat.  (Va.)  291;  21  Am.  Rep.  348.  Springs  v. 
Harven,  3  Jones  Eq.  (N.  Car.)  96;  Perry  v.  Adams,  98  N.  Car.  167;  3  8.  E.  Rep. 
729.  Robertson  v.  Bradford,  73  Ala.  116;  Wilson  v.  Holt,  83  Ala.  528;  3  So. 
Rep.  321  f  Ellis  v.  Ellis,  84  Ala.  348;  4  So.  Rep.  868.  Valle  v.  Fleming,  29  Mo. 
152;  77  Am.  Dec.  557;  Haff  v.  Price,  50  Mo.  228;  Shroyer  v.  Nickell,  55  Mo.  264; 
Jones  v.  Manley,  58  Mo.  559;  Evans  v.  Snyder,  64  Mo.  517;  Sims  v.  Gray,  66  Mo. 
613;  Snider  v.  Coleman,  72  Mo.  568;  Schaefer  v.  Causey,  8  Mo.  App.  142.  Lee 
v.  Gardiner,  26  Miss.  521;  Jayne  v.  Boisgerard,  39  Miss.  796;  Short  v.  Porter, 
44  Miss.  533;  Gaines  v.  Kennedy,  53  Miss.  103;  Hill  v.  Billingsly,  53  Miss.  Ill; 
Cole  v.  Johnson,  53  Miss.  94;  McGee  v.  Wallis,  57  Miss.  638;  34  Am.  Rep.  484; 
Pool  v.  Ellis,  64  Miss.  555;  1  So.  Rep.  725.  Cathcart  v.  Sugenheimer,  18  So. 
Car.  123,  where  the  principle  of  the  text  was  applied  to  an  invalid  sale  of  a 
lunatic's  lands  for  the  payment  of  his  debts.  Levy  v.  Riley,  4  Oreg.  392,  semble. 
Contra,  Nowler  v.  Coit,  1  Ohio,  519;  13  Am.  Dec.  640. 

1  Jones  on  Mortgages,  §  874  et  seq. ;  26  Am.  &  Eng.  Encyc.  of  Law,  935;  24  id. 
261;  Sheldon  on  Subrogation,  §§  31,  33.  The  majority  of  the  illustrations  below 
were  cases  of  invalid  foreclosure  sales.  Robinson  v.  Ryan,  25  N.  Y.  320;  Wins- 
low  v.  Clark,  47  N.  Y.  261;  Miner  v.  Beekman,  50  N.  Y.  337.  Johnson  T.  Sand- 
hoff,  30  Minn.  197.  Honaker  v.  Shough,  55  Mo.  472.  Frische  v.  Kramer,  16 
Ohio,  125;  47  Am.  Dec.  368.  Curtis  v.  Gooding,  99  Ind.  45.  Hays  v.  Dalton,  5 
Lea  (Tenn.),  555.  Haymond  v.  Camden,  22  W.  Va.  180;  Hull  v.  Hull,  35  W.  V». 
155;  13  S.  E.  Rep.  49.  Contra,  Branham  v.  San  Jose,  24  Cal.  585. 

1  Geohegan  v.  Ditto,  2  Mete.  (Ky.)  433;  74  Am.  Dec.  413.  If  the  purchaser  Is 
fuHy  subrogated  to  all  the  rights  of  the  judgment  creditor  he  would  have  a  lien 
by  virtue  of  the  judgment,  it  would  seem,  without  regard  to  the  question  of 
possession. 

•Rev.  Code  N.  Car.  ch.  45,  §  27.  Code  Civ.  Proc.  Cal.  §  708;  Hitchcock  v. 
Caruthers,  100  Cal.  100.  Rev.  St.  Iowa  (1865),  3321.  Code  Civil  Proc.  N.  Y. 
§  1440.  But  the  purchaser  will  not,  under  this  statute,  be  entitled  to  relief  if  ha 
be  guilty  of  fraud  at  the  sale. 

4  Frost  v.  Atwood,  73  Mich.  67.  In  this  case  an  administratrix  procured  a 
license  to  sell  for  the  payment  of  debts  certain  devised  estate  in  the  hands  of 
the  devisee,  when,  by  the  law  of  Michigan,  the  creditor  alone  and  not  the  admin- 


CAVEAT  EMPTOK.  139 

money  derived  from  the  invalid  sale,  so  that  the  same  shall  not  have 
been  applied  to  the  payment  of  the  debts  of  the  estate,  there  will 
be  nothing  to  which  the  purchaser  can  be  subrogated,  and  he  will 
be  without  relief.1  The  rights  of  the  purchaser  in  the  premises  are 
co-extensive  with  those  of  the  creditor  to  whom  he  claims  to  be 
subrogated.  If  the  debt  discharged  from  the  proceeds  of  the  sale 
under  execution  was  not  a  lien  or  charge  upon  the  property  sold, 
the  doctrine  of  subrogation  does  not  apply.2  Nor  can  the  purchaser 
claim  any  priority  or  precedence  to  which  the  creditor,  whose  lien 
he  claims,  was  not  entitled.8  In  respect  to  void  sales  in  proceedings 
for  partition  it  is  to  be  observed  that  if  the  purchase  money  has 
been  distributed  among  those  entitled,  they  and  those  claiming  under 
them  will  be  estopped  from  setting  up  their  title  against  the  purchaser 
until  they  reimburse  him  the  amount  paid  by  him  for  the  land.4 

The  doctrine  of  subrogation  as  applied  to  the  relief  of  purchasers 
at  void  execution  or  probate  sales  is  undoubtedly  of  comparatively 
recent  origin.  As  late  as  the  year  1835  a  judge  declared  that  he 
had  not  been  able  to  find  a  single  case  in  England  or  in  America  in 
which  this  relief  had  been  granted  to  the  purchaser,  upon  a  bill 
expressly  filed  by  him  for  that  purpose,9  though  the  courts  had  been 
in  the  habit  of  refusing  relief  to  the  execution  defendant,  or  other 
person  seeking  to  recover  the  estate,  until  he  should  reimburse  the 
purchaser  for  the  improvements  made  by  him.  Afterwards  this 
relief  was  granted  upon  bill  filed  by  the  purchaser,6  and  from  mere 
reimbursement  for  improvements,  redress  to  the  purchaser  has  been 
enlarged  to  entire  restitution  of  the  purchase  money. 

istrator  had  power  to  subject  property  in  the  hands  of  the  devisee  to  the  pay- 
ment of  the  testator's  debts.  The  purchaser  was  ejected  from  the  property  by 
the  devisee.  He  afterwards  filed  his  bill  against  the  devisee,  claiming  to  be  sub- 
rogated to  the  benefit  of  the  liens  discharged  with  the  purchase  money  paid  by 
him,  which  bill  was  dismissed.  The  case  contains  dicta  which  apparently  deny 
the  right  of  a  purchaser  at  a  void  private  sale  to  be  subrogated  to  the  lien  of 
the  probate  creditor  in  any  case. 
1  Pool  v.  Ellis,  64  Miss.  555.  Bennett  v.  Coldwell,  8  Baxt.  (Tenn.)  483. 

*  Sheld.  on  Subrogation,  §  209;  Bennett  v.  Coldwell,  8  Baxt.  (Tenn.)  483. 
•Duncan  v.  Gainey,  108  Ind.  579;  9  N.  E.  Rep.  470. 

4  Gaines  v.  Kennedy,  53  Miss.  103.  Chambers  v.  Jones,  72  111.  275.  Bland  T. 
Bowie,  53  Ala.  152;  Goodman  v.  Winter,  64  Ala.  410;  38  Am.  Rep.  18.  Favill 
T.  Roberts,  50  N.  Y.  222. 

1  Chancellor  WAL WORTH  in  Putnam  v.  Ritchie,  6  Paige  Ch.  (N.  Y.)  405. 

•  Bright  v.  Boyd,  1  Story  C.  C.  (U.  8.)  478.     Hatcher  v.  Briggs,  6  Oreg.  81. 


MARKETABLE  TITLE  TO  REAL  ESTATE. 

§  66.  Subrogation  of  purchaser  where  sale  is  valid.  It  has 
been  held  that  if  a  debtor  have  no  title  to  lands  sold  under  execu- 
tion against  him  the  purchaser  may,  in  equity,  recover  from  him  the 
amount  paid  for  the  property,  though  no  fraud  in  relation  to  the 
sale  be  imputed  to  the  debtor,  and  this,  upon  the  ground  that  the 
purchaser's  money  has  gone  to  discharge  a  valid  obligation  of  the 
execution  debtor,  and  that  the  former  should  in  equity  be  substi- 
tuted to  the  place  of  the  creditor,  and  treated  as  an  assignee  of  his 
rights  in  the  premises.1  This  doctrine  seems  a  complete  administra- 
tion of  justice  between  the  parties,  placing  them  substantially  in  the 
same  position  in  which  they  were  before  the  debtor's  liability  was 
incurred.  But  it  cannot  be  reconciled  with  the  rule  caveat  empt&r? 
and  it  has  also  been  repudiated  upon  less  cogent  grounds,  namely, 
that  the  liability  of  the  execution  debtor  is  completely  extinguished 
by  the  payment  of  the  purchase  money,  and  that  the  purchaser, 
with  respect  to  such  payment,  is  to  be  regarded  as  a  mere  volunteer.8 
In  some  of  the  States,  if  the  execution  plaintiff  become  the  pur- 
chaser of  the  premises,  and  it  afterwards  appears  that  the  execution 
debtor  had  no  title  to  the  property,  the  apparent  satisfaction  of  the 
judgment  by  the  sale  will  be  canceled  and  the  plaintiff  allowed  to 
take  out  a  new  execution.4  This  practice  is  equitable  and  just,  and 
'prevails,  it  is  believed,  in  most  of  the  States.  But  it  is  clearly 

1  Muir  v.  Craig,  3  Blackf.  (Ind.)  293,  following  McGhee  v.  Ellis,  4  Litt.  (Ky.) 
244;  14  Am.  Dec.  124,  a  case  in  which  the  sale  was  of  a  slave  to  whom  the  exe- 
cution debtor  had  no  title,  the  court  saying  that  the  principle  applied  with  the 
same  force  to  sales  of  real  property  as  to  sales  of  personalty.  Dunn  v.  Frazier, 
SBiackf.  (Ind.)  432;  Preston  v.  Harrison,  9  Ind.  1;  Pennington  v.  Clifton,  10 
Ind.  172;  Julian  v.  Beal,  26  Ind.  220;  89  Am.  Dec.  460.  Reed  v.  Crosthwaite,  6 
Iowa,  219;  71  Am.  Dec.  406.  Moore  v.  Allen,  4  Bibb  (Ky.),  41,  where,  however, 
the  purchaser  seems  to  have  been  induced  to  bid  by  the  fraudulent  conduct  of 
the  execution  debtors.  White  v.  Park,  5  J.  J.  Marsh.  (Ky.)  603;  Qeoghegan  v. 
Ditto,  2  Mete.  (Ky.)  433;  74  Am.  Dec.  413;  McLaughlin  v.  Daniel,  8  Dana  (Ky.), 
182,  case  of  personal  property. 

*  Vanscoyoc  v.  Kimler,  77  111.  151;  Bishop  v.  O'Connor,  69  111.  431;  Bassett  v. 
Lockard,  60  111.  164. 

» Bishop  v.  O'Conner,  69  111.  431. 

4  Freeman  on  Executions,  §§  54,  301,  352.  Cross  v.  Zane,  47  Cal.  602.  Bitter 
v.  Henshaw,  7  Iowa,  98;  Ladd  v.  Blunt,  4  Mass.  402;  Tate  v.  Anderson,  9  Mass. 
92;  Gooch  v.  Atkins,  14  Mass.  378.  Magwire  v.  Marks,  28  Mo.  193;  75  Am.  Dec. 
121.  Swaggerty  v.  Smith,  1  Heisk.  (Tenn.)  403.  Townsend  v.  Smith,  20  Tex. 
465;  70  Am.  Dec.  400;  Andrews  v.  Richardson,  21  Tex.  287.  Tudor  v.  Taylor, 
26  Vt.  444.  Price  v.  Boyd,  1  Dana  (Ky.),  434.  This  right  is  also  in  substance 
secured  to  the  purchaser  by  statute  in  some  of  the  States,  whether  he  was  a 


CAVTCAT  EMTTOIf.  141 

inconsistent  with  the  rule  caveat  emptor,  for  there  would  seem  to  be 
nothing  in  the  relations  of  the  execution  plaintiff  to  the  parties  and 
subject-matter  that  would  place  him  upon  higher  ground  than  a 
stranger  in  respect  to  the  title.  There  are  cases  which  do  not 
recognize  the  distinction,  and  which  hold  the  purchaser  bound  in 
either  case.1  It  would  seem  that  the  ends  of  justice  are  subserved 
by  disregarding  the  rule  caveat  emptor,  whether  the  execution 
plaintiff  or  a  stranger  becomes  the  purchaser,  so  far  as  to  permit 
either  to  have  a  new  execution,  the  one  in  his  own  right  and  the 
other  as  equitable  assignee. 

The  doctrine  of  subrogation,  being  cognizable  in  equity  only,  will 
never  be  applied  in  favor  of  a  purchaser  who  has  been  guilty  of  fraud 
in  the  procurement  of  the  sale  in  respect  to  which  he  seeks  relief.2 

Whatever  doubt  may  exist  as  to  the  true  rule  with  respect  to  the 
right  of  subrogation  of  a  purchaser  at  a  sale  under  execution  or  by 
an  administrator,  when  he  has  been  evicted  by  the  holder  of  a  para- 
mount title,  there  would  seem  to  be  none  where  the  purchaser  payj 
off  incumbrances  on  the  property  to  protect  his  title,  and,  certainly, 
none  if  the  price  paid  by  him  for  the  property  was  less  than  its  fair 
market  value.  The  purchaser  in  such  case  will  be  presumed  to 
have  been  aware  of  the  existence  of  the  incumbrance  and  to  have 
made  his  bid  accordingly.8  Any  other  rule  would  operate  a  great 

stranger  or  a  party  to  the  execution.  Code  Civil  Proc.  Cal.  §  708.  Rev.  Code 
N.  Car.  ch.  45,  §  27.  Code  Civil  Proc.  N.  Y.  §  1440.  Rev.  St.  Iowa  (1865), 
§  3321.  In  Halcombe  v.  Loudermilk,  3  Jones  L.  (N.  C.)  491,  it  was  held  that  the 
purchaser,  having  such  a  remedy  by  action  against  the  execution  debtor,  could 
not  maintain  a  proceeding  against  him  in  equity  for  subrogation  eo  nomine.  The 
same  principle  has  been  applied  where  the  sale  was  of  personal  property.  Whit- 
ing v.  Brooks,  2  N.  H.  79.  Adams  v.  Smith,  5  Cow.  (N.  Y.)  280;  Richardson  T. 
McDougall,  19  Wend.  (N.  Y.)  80;  Piper  v.  Elwood,  4  Den.  (N.  Y.)  165.  The 
principle,  however,  applies  without  distinction  to  levies  upon  realty.  Edde  v. 
Cowan,  1  Sneed  (Tenn.),  290;  Swaggerty  v.  Smith,  1  Heisk.  (Tenn.)  403. 

1  Vattier  v.  Lytle,  6  Ohio.  477;  Salmon  v.  Price,  13  Ohio,  383;  42  Am.  Dec. 
204;  Hollister  v.  Dillon,  4  Ohio  St.  205.  Perry  v.  Williams,  Dudley  (S.  Car.),  44 
Vanscoyoc  v.  Kimler,  77  111.  151.  Freeman  v.  Caldwell,  10  Watts  (Pa.),  10. 
Halcombe  v.  Loudermilk,  3  Jones  L.  (N.  C.),  491. 

1  Sheld.  Subrogation,  §  44;  Freeman  Void  Jud.  Sales,  §  54;  26  Am.  &  Eng. 
Encyc.  of  L.  268,  269.  McCasky  v.  Graff,  23  Pa.  St.  321;  62  Am.  Dec.  336;  Gilbert 
v.  Hoffman,  2  Watts  (Pa.),  66;  26  Am.  Dec.  103.  Elam  v.  Donald,  58  Tex.  316. 

4  Walden  v.  Gridley,  36  111.  523;  Bassett  v.  Lockwood,  60  111.  164.  Threlkeld 
v.  Campbell,  2  Grat.  (Va.)  198;  44  Am.  Dec.  384.  Harth  v.  Gibbes,  3  Rich.  L. 
(8.  Car.)  316. 


142  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

injustice,  for  the  purchaser  might,  by  recovering  the  amount  of  the 
incumbrances  from  the  execution  debtor,  acquire  the  estate  for  a 
trifling  sum.  But  if  the  purchaser  should  pay  the  fair  market  value 
for  the  property,  and  an  incumbrance  of  which  all  parties  were 
ignorant  should  afterwards  be  discovered,  and  the  purchaser  should 
be  compelled  to  remove  the  same  in  order  to  protect  himself,  no 
reason  is  perceived  why  he  would  not  be  as  much  entitled  to  subro- 
gation either  to  the  benefit  of  the  incumbrance  so  discharged  or  to 
the  lien  of  the  judgment  under  which  he  purchased  as  if  he  had 
been  evicted  by  an  adverse  claimant.1  If  the  existence  of  an  incum- 
brance should  be  seduously  and  fraudulently  concealed  from  the 
purchaser,  or  if  false  and  fraudulent  misrepresentations  should  be 
made  to  him  in  that  regard  by  any  one  interested  in  making  the 
sale,  he  would  have  his  action  to  recover  damages  for  the  deceit. 
The  purchaser,  of  course,  cannot  apply  any  part  of  the  unpaid  pur- 
chase money  to  the  discharge  of  prior  incumbrances  on  the  premises. 
Whatever  may  be  his  right  of  subrogation  as  against  the  execution 
debtor  or  other  person  primarily  bound,  he  has  none  against  the 
creditor  at  whose  instance  the  sale  was  made.2 

1  In  Walden  T.  Gridley,  38  HI.  523,  it  was  said  that  it  might  be  that  a  pur- 
chaser under  an  execution  who  paid  off  a  prior  judgment  to  protect  his  title 
would  have  his  remedy  over  against  the  execution  debtor  for  the  amount  so  con- 
tributed to  pay  his  debt.  Where  premises  are  expressly  sold  in  partition,  sub- 
ject to  all  incumbrances,  the  purchaser  cannot  have  the  purchase  money  applied 
to  the  discharge  of  an  incumbrance,  the  existence  of  which  was  unknown  to  all 
parties  because  of  error  in  indexing.  Buttron  v.  Tibbitts,  10  Abb.  N.  Cas.  (N. 


*Osterbury  v.  Union  Trust  Co.,  93  TJ.  S.  424.     Farmers'  Bank  v.  Peter.  13 
Bush  (Ky.),  591.     Harth  v.  Gibbes,  3  Rich.  L.  (So.  Car.)  316. 


CHAPTER  VI. 
COVENANTS  WHICH  THE  PURCHASER  HAS  A  RIGHT  TO  DEMAND. 

USUAL  COVENANTS.    §  67. 

FROM  GRANTORS  IN  THEIR  OWN  RIGHT.     §  68. 

FROM  FIDUCIARY  GRANTORS.     §  69. 

FROM  MINISTERIAL  OFFICERS.     §  70. 

§  67.  USUAL  COVENANTS.  Covenants  for  title,  as  will  hereafter 
be  seen,  are  agreements  by  the  vendor  in  solemn  form,  inserted  in 
the  conveyance  to  the  purchaser  for  his  protection  in  case  his  title 
should  be  afterwards  overthrown,  or  incumbrances  upon  the  prop- 
erty successfully  asserted.  As  a  general  rule  the  purchaser's  right 
to  relief  against  the  vendor,  in  case  he  should  suffer  loss  through  a 
defective  title  after  the  contract  has  been  executed  by  a  conveyance, 
depends  upon  the  covenants  which  that  conveyance  contains.  If 
there  are  no  covenants  the  almost  universal  rule  is  that  the  purchaser 
is,  in  the  absence  of  fraud  or  mistake,  absolutely  without  relief  at 
law  or  in  equity.1  Consequently,  the  right  of  the  purchaser  to 
require  that  the  conveyance  shall  contain  covenants  adequate  for  his 
protection,  is  of  the  most  vital  importance  to  him,  and  should,  in 
those  States  where  the  purchaser  is  held  entitled  to  a  conveyance 
with  general  covenants,  never  be  deemed  to  have  been  parted  with, 
except  upon  clear  evidence  that,  by  the  terms  of  the  contract,  the 
vendor  was  bound  only  to  execute  a  quit-claim  conveyance,  or  a  con- 
veyance without  any  covenants  whatever. 

The  usual  covenants  for  title  in  the  American  practice  are  those  : 
(1)  of  seisin  ;  (2)  of  good  right  to  convey ;  (3)  against  incumbrances ; 
(4)  of  warranty ;  (5)  for  quiet  enjoyment,  and  (6)  for  further  assur- 
ance.3 Of  these  the  most  important  are  the  covenants  for  seisin, 

1  Post,  ch.  27. 

»4  Kent  Com.  471;  Rawle  Covts.  (5th  ed.)  §  21;  Murphy  v.  Lockwood,  21  111. 
618.  The  following  is  an  approved  form  of  the  several  covenants  for  title  in  use 
in  America.  They  usually  constitute  the  last  clauses  of  a  conveyance.  Such 
expressions  as  are  necessary  to  make  the  covenant  special  or  United  are  inserted 
below  in  parentheses:  "Doth  hereby  covenant  for  himself  his  heirs  executors 
and  administrators  that  (notwithstanding  any  act  matter  or  thing  by  him  done) 
he  the  said  (vendor)  is  now  lawfully  seised  of  the  said  premises  And  hath  good 
right  to  convey  the  same  That  the  same  are  free  from  all  incumbrances  (done 
suffered  or  committed  by  him)  And  that  the  said  (purchaser)  his  heirs  and 
assigns  shall  and  may  at  all  times  hereafter  freely  peaceably  and  quietly  enjoy 


144  MARKETABLE  TIT1YK  TO  REAL  ESTATE. 

against  incumbrances,  and  of  warranty.  The  covenant  of  good 
right  to  convey  is  embraced  in  that  for  seisin,  and  that  for  quiet 
enjoyment  in  the  covenant  of  warranty.  The  covenant  for  further 
assurance  is  not  generally  used  throughout  the  country.1  The  same 
necessity  does  not  exist  for  it  as  in  England,  where  a  very  artificial 
and  complicated  system  of  conveyancing  prevails.  The  nature  and 
incidents  of  each  of  these  covenants  will  be  hereafter  explained. 
For  our  present  purposes  it  is  only  necessary  to  say  that  each  of 
them  is  either,  (1)  general,  that  is,  against  the  acts,  claims  and 
demands  of  any  and  all  persons  whomsoever ;  or  (2)  special  or  lim- 
ited, that  is,  against  the  acts  and  claims  of  the  grantor  or  of  any 
person  claiming  by,  through  or  under  him.  A  conveyance  with 
special  or  limited  covenants  only  is  commonly  called  a  "  quit  claim," 
and  is,  with  respect  to  defects  of  title  not  arising  from  some  act  of 
the  grantor  or  those  claiming  under  him,  no  more  in  effect  than  a 
conveyance  without  covenants  of  any  kind.2  From  what  has  been 
said  it  follows  that  the  question,  "  What  are  the  usual  covenants  for 
title  ? "  is  to  be  considered  in  two  aspects,  namely,  (1)  whether  all  five 
(or  six)  of  the  covenants  can  be  required  from  the  vendor,  and  (2) 

the  same  without  molestation  or  eviction  of  him  the  said  (vendor)  or  any  person  or 
persons  whomsoever  (lawfully  claiming  or  to  claim  the  same  by  from  or  under 
him  them  or  any  of  them).  And  that  he  the  said  (vendor)  shall  at  all  times  here- 
after at  the  request  and  expense  of  the  said  (purchaser)  his  heirs  and  assigns 
make  and  execute  such  other  assurances  for  the  more  effectual  conveyance  of 
the  said  premises  as  shall  be  by  him  reasonably  required  And  that  he  the  said 
(vendor)  and  his  heirs  all  and  singular  the  messuages  and  tenements  etc  hereby 
granted  and  mentioned  or  intended  so  to  be  with  the  appurtenances  took  the  said 
(purchaser)  his  heirs  and  assigns  against  him  the  said  (vendor)  and  his  heirs  and 
against  all  and  every  other  person  or  persons  lawfully  claiming  or  to  claim  the 
same  or  any  part  thereof  (by  from  or  under  him  them  or  any  of  them)  shall  and 
will  by  these  presents  warrant  and  forever  defend."  See  Rawle  Covts.  (5th  ed.) 
p.  29. 

1  Wilson  v.  Wood,  2  C.  E.  Gr.  (N.  J.  Eq.)  216. 

*The  term  "  quit  claim"  is  generally  denned  or  considered  to  be  a  deed  with- 
out covenants  of  any  kind  as  to  the  title,  or  a  deed  with  special  or  limited  cove- 
nants for  title  only.  Rawle  Covts.  (oth  ed.)  §  30.  But  in  those  States  in  which 
by  statute  or  judicial  construction  general  covenants  of  warranty  are  implied 
from  certain  words  of  grant,  such  as  the  words  "  do  hereby  sell  and  convey  "  a 
deed  without  express  covenants  for  title  is,  of  course,  not  necessarily  a  quit 
claim,  even  though  the  words  "quit  claim"  are  employed  in  the  operative 
words  of  conveyance,  if  language  from  which  general  covenants  can  be  implied 
is  used.  Wilson  v.  Irish,  62  Iowa,  266;  17  N.  W.  Rep.  511;  Sibley  v.  Bullis,  40 
Iowa,  429.  See,  also,  Taylor  v.  Harrison.  47  Tex.  454,  461;  26  Am.  Rep.  304. 


COVENANTS  WHICH  THE  PURCHASER  HAS  A  RIGHT  TO  DEMAND.     145 

whether  the  covenants  given  must  be  general  and  unlimited,  or  lim- 
ited and  special. 

In  the  English  practice  the  purchaser,  in  the  absence  of  express 
contract  to  the  contrary,  undoubtedly  had  the  right  to  call  for  all 
of  the  covenants  for  title.1  Such,  also,  is  the  rule  in  those  of 
the  American  States  in  which  the  covenant  of  warranty  is  not  by 
law  or  custom  deemed  to  embrace  the  other  covenants.'  But  in 
some  of  the  States  this  right  has  been  held  to  be  limited  or  qualified 
by  particular  expressions  in  the  contract  —  expressions  which  in 
other  States  have  been  denied  that  effect.  Thus  in  New  York  and 
elsewhere  it  has  been  held  that  an  agreement  by  the  vendor  to 
execute  a  "  warranty  deed  "  obliged  him  to  insert  in  his  deed  no 
other  covenant  than  that  of  warranty.3  On  the  other  hand,  in 
Indiana  and  elsewhere  it  is  considered  that  such  an  agreement 
entitles  the  purchaser  to  all  the  principal  covenants  for  title.4  So, 
also,  where  the  vendor  agreed  to  convey  with  the  "  usual  covenants."5 
If  the  contract  be  silent  as  to  the  number,  nature  and  kinds  of 
covenants  for  title  into  which  the  vendor  must  enter,  the  better 
opinion  seems  to  be  that  the  parties  will  be  presumed  to  have  con- 
tracted in  that  respect  with  reference  to  the  known  use  and  custom 
of  the  locality  in  which  the  land  is  situated.'  In  many  of  the  States 
it  is  not  customary  to  insert  any  other  covenant  than  that  of  gen- 

1  2  Sugd.  Vend.  ch.  14,  §  3. 

1  Post,  notes  4  and  5;  Murphy  v.  Lockwood,  21  111.  618. 

» Kirkendall  v.  Mitchell,  3  McL.  (U.  8.)  144.  Wilsey  v.  Dennis,  44  Barb. 
(N.  Y.)  354. 

4  Clark  v.  Redman,  1  Bl.  (Ind.)  379;  Leonard  v.  Bates,  1  Bl.  (Ind.)  172;  Daw- 
son  v.  Shirley,  6  Bl.  (Ind.)  531;  Linn  v.  Barkey,  7  Ind.  69;  Bethell  v.  Bethell,  92 
Ind.  318,  321.  Bowen  v.  Thrall,  28  Vt.  382. 

•  Wilson  v.  Wood,  2  C.  E.  Gr.  (N.  J.  Eq.)  216;  88  Am.  Dec.  231.  Drake  v.  Bar- 
ton, 18  Minn.  462.  An  agreement  to  execute  a  deed  containing  "  the  usual  full 
covenants  and  warranty  of  title  "  will  not  be  satisfied  by  the  tender  of  a  deed 
containing  a  covenant  of  general  warranty  only;  the  deed  must  contain  also 
covenants  of  seisin  and  against  incumbrances.  McKleroy  v.  Tulane,  34  Ala.  88. 

•Dwight  v.  Cutler,  3  Mich.  586;  54  Am.  Dec.  105.  Wilson  v.  Wood,  2  C.  B. 
Or.  (N.  J.  Eq.)  216;  88  Am.  Dec.  231,  where  held  also  that  the  question  what 
are  the  usual  covenants  in  deeds  in  a  given  locality  may  be  referred  to  a  master 
in  chancery  for  inquiry  and  report.  Henderson  v.  Hay,  3  Bro.  Ch.  632.  What 
are  usual  covenants  for  title  is,  it  seems,  a  question  of  fact  to  be  determined  by 
custom  and  usage  of  the  locality  where  the  land  lies.  Rawle  Covts.  (5th  ed.) 
§  31.  Bennett  v.  Womack,  3  Car.  &  P.  96. 
19 


14(5  MARKETABLE  TITLE  TO  REAL  ESTATE. 

eral  warranty  in  a  fee  simple  conveyance.1  When  such  a  custom 
prevails,  it  is  apprehended  that  the  vendor  could  be  required  to 
'enter  into  no  other  covenant  for  title  unless  the  contract  expressly 
provided  for  other  covenants.  In  this  respect  the  parties  will  be 
deemed  to  have  been  governed  by  the  lex  rei  sites  and  not  by  the 
lex  loci  contractu?  But  where  the  question  is  whether  certain  lan- 
guage in  a  deed  creates  a  particular  covenant  for  title  or  what 
covenants  the  deed  in  fact  contains,  the  law  of  the  place  of  the  con- 
tract governs.8  In  some  of  the  States  it  is  held  that  a  purchaser  is 
not  entitled  to  all  the  covenants  for  title  unless  the  contract 
expressly  requires  them.4 

The  student  and  the  practitioner  in  those  jurisdictions  in  which 
the  covenant  of  warranty  is  not  held  to  embrace  all  the  other  cove- 
nants for  title  should  be  warned  against  attributing  to  that  covenant 
too  wide  a  scope.  At  the  first  glance,  it  would  appear  that  this 
covenant  is  amply  sufficient  for  the  protection  of  the  purchaser 
under  all  circumstances.5  This  is  true,  as  a  general  rule,  in  cases 
where  the  defective  title  results  in  an  eviction  of  the  purchaser. 
But  where  there  has  been  no  eviction  and  the  grantor  is  neither  an 
insolvent  nor  a  non-resident,  it  is  very  generally  held  throughout 
the  United  States  that  the  purchaser  cannot  resist  the  payment  of 
the  purchase  money,  even  though  there  has  been  a  total  failure  of 

1  Dickinson  v.  Hoomes,  8  Grat.  (Va.)  353.  Green  v.  Irving,  54  Miss.  454;  28 
Am.  Rep.  360.  Leary  v.  Durham,  4  Ga.  601,  LUMPKIN,  J.,  saying  that  in  a 
practice  of  more  than  twenty-five  years  he  had  never  seen  a  deed  containing  all 
five  of  the  covenants  for  title. 

*  Gault  v.  Van  Zile,  37  Mich.  22,  per  COOLET,  C.  J.  Here  it  was  held  that  the 
purchaser  was  entitled  to  such  deed  as  is  usual  by  custom  of  the  rei  sit®  ;  this 
in  analogy  to  the  rule  that  the  sufficiency  of  a  deed  is  to  be  determined  by  the 
lex  rei  sitce.  2  Pars.  Cont.  571,  note  h  ;  Hosford  v.  Nichols,  1  Paige  Ch.  (N.  Y.) 
220. 

"Bethell  v.  Bethell,  54  Ind.  428;  S.  C.,  92  Ind.  318,  and  23  Am.  Rep.  650. 
,  Here  the  land  was  in  Missouri,  and  the  deed  was  made  in  Indiana.  It  was  held 
that  the  Missouri  law  that  certain  covenants  should  be  implied  from  words  of 
grant  in  the  deed  would  not  prevail  in  Indiana,  so  as  to  oblige  the  court  to  con- 
strue the  deed  as  containing  these  covenants.  In  another  State  a  contrary 
view  has  been  taken  of  the  law  in  respect  to  covenants  which  run  with  the 
land.  Dalton  v.  Taliaferro,  101  111.  App.  592. 

'Lounsbery  v.  Locander,  10  C.  E.  Gr.  (N.  J.)  554;  Thayer  v.  Torrey,  37  N.  J. 
L.  345;  Newark  Sav.  Inst.  v.  Jones,  37  N.  J.  Eq.  449.  ».. 

s  Stewart  v.  West,  14  Pa.  St.  330,  where  GIBSON,  C.  J.,  speaking  of  the  core- 
nnnt  of  general  warranty,  said :  "  In  Pennsylvania,  it  has  been  retained  by 
unprofessed  scriveners  as  a  nostrum  supposed  to  contain  the  virtues  of  thf 
whole  five,  but  its  potency  has  not  been  recognized  l:y  the  bcTieh." 


COVENANTS  WHICH  THE  PURCHASER  HAS  A  BIGHT  TO  DEMANTX     147 

the  title.1  It  seems,  however,  that  if  the  conveyance  to  the  pur- 
chaser had  contained  a  covenant  for  seisin,  which  is  broken  as  soon 
as  made,  if  the  title  be  bad,  the  purchaser  might  detain  the  purchase 
money,  provided  he  restored  the  premises  to  the  vendor.'  It  is 
hardly  necessary  to  say  that  these  observations  apply  only  to  cases 
where  the  contract  has  been  executed  by  a  conveyance.  The  cove- 
nant of  warranty  cannot  be  treated  as  a  covenant  against  incum- 
brances,  except  in  a  few  of  the  States,  where  it  is  held  to  include 
all  the  other  covenants  .for  title.8  The  necessity  for  the  covenant 
against  incumbrances  will  be  felt  where  the  purchaser  seeks  to 
compel  the  vendor  to  remove  an  incumbrance  from  the  premises 
which  exceeds  in  amount  the  consideration  of  the  conveyance.4 

§  68.  FROM  GRANTORS  IN  THEIR  OWN  BIGHT.  Assuming 
that,  by  contract,  express  or  implied,  the  purchaser  may  require  all 
the  several  covenants  for  title,9  the  next  question  and  the  more 
important  one  is  whether  he  may  insist  that  those  covenants  shall 
be  general  and  unlimited,  and  not  merely  limited  or  special.  In 
England,  a  vendor  who  actually  purchased  the  estate  himself  for 
money,  and  did  not  acquire  it  by  gift,  devise  or  descent,  can  be 
required  to  enter  into  covenants  only  against  his  own  acts,  or  those 
of  persons  claiming  under  him.'  If  he  did  not  acquire  the  estate 

'•  Post,  ch.  16. 

•  Post,  ch.  26. 

•Findlay  v.  Toncray,  2  Rob.  (Va.)  374,  379;  Wash.  City  Sav.  Bank  v.  Thorn- 
ton, 83  Va.  157;  2  S.  E.  Rep.  193. 
4  Post,  ch.  21. 

•  Church  v.  Brown,  15  Ves.  263.     In  this  case  Lord  ELDON  said  that  if  a  man 
covenanted  to  sell  a  fee  simple  estate  free  from  all  incumbrances,  and  says  no 
more,  it  is  clear  that  the  covenant  carries  in  gremio,  and  in  the  bosom  of  it,  the 
right  to  proper  covenants.  , 

•  2  Sugd.  Vend.  (14th  ed.)  282,  234;  3  Powell  Conv.  206,  210;  Wakeman  v. 
Dutchess  of  Rutland,  3  Ves.  Jr.  233;  Lloyd  v.  Griffiths,  3  Atk.  267;  Pickett  v. 
Loggon,  14  Ves.  239;  Thackeray  v.  Wood,  6  B.  &  8.  (Q.  B.)  773.     The  following 
extract  from  the  opinion  of  Lord  ELDON,  in  Browning  v.  Wright,  2  Bos.  &  Pul. 
13,  22,  clearly  sets  forth  the  English  rule  as  to  the  extent  of  covenants  that  may 
be  required  of  one  selling  a  fee  in  his  own  right:  "  This  transaction  is  a  purchase 
of  an  estate  of  inheritance  in  fee,  and  the  first  question  is,  what  will  be  the 
nature  and  effect  of  a  conveyance  carrying  such  a  contract  into  execution  ?    If 
a  man  purchase  an  estate  of  inheritance  and  afterwards  sell  it,  it  is  to  be  under- 
stood, prima  facie,  that  he  sells  the  estate  as  he  received  it,  and  the  purchaser 
takes  the  premises  granted  by  him  with  covenants  against  his  acts.     If  the 
vendor  has  taken  by  descent,  he  covenants  against  his  acts  and  those  of  his 


148  MARKETABLE  TITLE  TO  REAL  ESTATE. 

for  a  valuable  consideration,  his  covenants  must  extend  to  the  acts 
of  the  last  purchaser.1  But  in  no  case  could  he  be  required  to 
extend  his  covenants  beyond  the  acts  of  the  last  purchaser.  In 
America,  the  rule  prevailing  in  most  of  the  States  is  that  the 
vendor's  covenants  must  be  general  or  unlimited,2  and  that  they 

ancestor;  and  if  by  devise,  it  is  not  unusual  for  him  to  covenant  against  the  acts 
of  the  devisor  as  well  as  his  own.  In  fact  he  says,  I  sell  this  land  in  the  same 
plight  that  I  received  it,  and  not  in  any  degree  made  worse  by  me.  It  was 
argued  that  if  this  were  so,  a  man  who  has  only  an  estate  for  life  might  convej 
an  estate  in  fee,  and  yet  not  be  liable  to  the  purchaser.  This  seems  at  first  to 
involve  a  degree  of  injustice,  but  it  all  depends  on  the  fact  whether  the  vendor 
be  really  putting  the  purchaser  into  the  same  situation  in  which  he  stood  him- 
self. If  he  has  bought  an  estate  in  fee,  and  at  the  time  of  the  re-sale  has  but  an 
estate  for  life,  it  must  have  been  reduced  to  that  estate  by  his  own  act,  and  in 
that  case  the  purchaser  will  be  protected  by  the  vendor's  covenants  against  any 
act  done  by  himself.  But  if  the  defect  in  his  title  depend  upon  the  acts  of  those 
who  had  the  estate  before  him,  and  he  honestly  but  ignorantly  proposes  to 
another  person  to  stand  in  his  situation,  neither  hardship  or  injustice  can  be 
done.  What  is  the  common  course  of  business  in  such  a  case  ?  An  abstract  ia 
laid  before  the  purchaser's  counsel;  and  though  to  a  certain  extent  he  relies  on 
the  vendor's  covenant,  still  his  chief  attention  is  directed  to  ascertaining  what  ia 
the  estate,  and  how  far  it  is  supported  by  the  title.  The  purchaser,  therefore, 
not  being  misled  by  the  vendor,  makes  up  his  mind  whether  he  shall  complete 
his  bargain  or  not,  and  if  any  doubts  arise  on  the  title,  it  rests  with  the  vendor 
to  determine  whether  he  will  satisfy  those  doubts  by  covenants  more  or  less 
extensive.  Prima  facie,  therefore,  in  the  conveyance  of  an  estate  of  inheritance 
we  are  led  to  expect  no  other  covenants  than  those  which  guard  against  the  acts 
of  the  vendor  and  his  heirs. 

1  2  Sugd.  Vend.  (8th  Am.  ed.)  232. 

'Witter  v.  Biscoe,  13  Ark.  422;  Bagley  v.  Fletcher,  44  Ark.  153;  Rudd  r. 
Savelli,  44  Ark.  145.  Steele  v.  Mitchell,  Pr.  Dec.  (Ky.)47;  Fleming  v.  Harrison. 
8  Bibb  (Ky.),  171;  4  Am.  Dec.  691;  Vanada  Y.  Hopkins,  1  J.  J.  M.  (Ky.)  293;  1» 
Am.  Dec.  92;  Andrews  v.  Ward,  17  B.  Mon.  (Ky.)  518;  Gaithor  v.  O'Doherty, 
(Ky.)  12  8.  W.  Rep.  306.  Clark  v.  Redman,  1  Bl.  (Ind.)  379.  Faircloth  v.  Laler, 
75  N.  C.  551;  Gilchrist  v.  Buie,  1  Dev.  &  Bat.  Eq.  (N.  C.)  358;  Henry  v.  Idles,  « 
Ired.  Eq.  (N.  C.)  407.  Vardeman  v.  Lawson,  17  Tex.  11;  Phillips  v.  Herndon, 
78  Tex.  378.  Even  though  the  vendor  understood  that  he  was  only  to  make  a 
quit-claim  deed,  if  such  understanding  was  not  known  to  the  purchaser.  Jones 
T.  Phillips,  59  Tex.  609.  Holland  v.  Holmes,  14  Fla.  390.  Dwight  v.  Cutler,  3 
Mich.  566;  64  Am.  Dec.  105;  Allen  v.  Hazen,  26  Mich.  143.  Herryford  v.  Turner, 
67  Mo.  296,  298.  Kenny  v.  Hoffman,  31  Grat.  (Va.)  442;  Hoback  v.  Kilgore,  26 
Grat.  (Va.)  442;  21  Am.  Rep.  317;  Dickinson  v.  Hoomes,  8  Grat.  (Va.)  353,  394; 
Rucker  v.  Lowther,  6  Leigh  (Va.),  259.  Of.  Remington  v.  Hornby,  4  Munf.  (Va.) 
140.  Tavenner  v.  Barrett,  21  W.  Va.  656,  681.  Clark  v.  Lyons,  25  111.  106. 
Johnston  v.  Piper,  4  Minn.  195.  Davis  v.  Henderson,  17  Wis.  110.  Tremaine 
v.  Lining,  Wright  (Ohio),  644;  but  see  Pugh  v.  Chasseldine,  11  Ohio,  109;  37  Am. 


COVENANTS  WHICH  THE  PTTRCHASEB  HAS  A  RIGHT  TO  DEMAND.     149 

must  be  full,  that  is,  consisting  of  all  the  usual  covenants  and  not 
merely  a  covenant  of  general  warranty.  Especially  does  this  rule 
prevail  in  the  younger  States  and  in  sparsely  settled  communi- 
ties where  accurate  and  thorough  examinations  of  title  are  fre- 
quently dispensed  with,  and  in  which,  as  a  necessary  consequence, 
titles  are  more  insecure  than  in  older  and  more  densely  populated 
sections,  where  few  transfers  of  real  property  are  made,  except 
upon  the  advice  and  assistance  of  competent  persons.1  In  several 

Dec.  414  The  purchaser  is  entitled  to  a  deed  with  general  warranty  whether  he 
buys  at  auction  or  private  sale.  Goddin  v.  Vaughn,  14  Grat.  (Va.)  102, 117.  An 
agreement  in  the  contract  of  sale  that  the  land  sold  "shall  be  in  the  quiet  and 
peaceable  possession  of  the  vendee  forever  without  any  let,  hindrance,  suit, 
molestation  or  trouble,  entitles  the  purchaser  to  a  conveyance  with  general 
warranty.  Slack  v.  Thompson,  4  T.  B.  Mon.  (Ky.)  462.  A  bond  to  make  "  suffi- 
cient title  "  requires  a  deed  with  general  warranty.  Hedges  v.  Kerr,  4  B.  Mon. 
(Ky.)  528.  An  agreement  to  give  a  "  warranty  deed  "  means  a  deed  with  general 
warranty.  Allen  v.  Hazen,  26  Mich.  142.  Johnston  v.  Piper,  4  Minn.  192  (133). 
In  Allen  v.  Yeater,  17  W.  Va.  128,  the  vendor  conveyed  "  with  warranty."  This 
was  held  to  mean  with  general  warranty.  It  was  said  that  the  deed,  being  taken 
most  strongly  against  the  grantor,  he  should  have  conveyed  with  "  special  war- 
ranty "  if  he  desired  to  limit  his  liability.  A  bond  to  "  make  indefeasible  title  in 
fee  simple,  such  as  the  State  requires,"  demands  a  deed  with  covenant  of  general 
warranty.  Kelly  v.  Bradford,  3  Bibb  (Ky.),  317;  6  Am.  Dec.  656.  So,  also,  an 
agreement  to  make  "  as  good  a  deed  as  can  be  had."  Day  v.  Burnham,  89  Ky. 
78;  11  S.  W.  Rep.  807.  An  agreement  to  "  make  a  sufficient  title  as  far  as  their 
claim  extends  on  said  lands  "  obliges  the  vendors  to  convey  with  special  war- 
ranty only.  Gilchrist  v.  Buie,  1  D.  &  B.  Eq.  (N.  Car.)  357.  So,  also,  an  agree- 
ment "  to  furnish  a  satisfactory  abstract  of  title  and  give  a  quit-claim  deed." 
Pitch  v.  Willard,  73  111.  92.  In  Day  v.  Burnham,  89  Ky.  76;  11  S.  W.  Rep.  807, 
it  was  said  that  the  bond  of  a  vendor  in  general  terms  to  convey  land  upon  pay- 
ment by  the  vendee  of  the  agreed  purchase  money  is  in  legal  contemplation  a 
covenant  that  he  has  or  will  procure  and  make  a  good  title  to  the  entire  quantity 
sold  and  in  his  deed  warrant  the  title  against  all  claims,  and  that  such  undertak- 
ing is  limited  only  when  in  plain  terms  so  expressed.  In  the  State  of  Washing- 
ton the  grantee  has  by  statute  the  same  rights  under  a  quit-claim  deed,  except  as 
to  an  after-acquired  estate,  that  he  would  have  under  a  deed  with  general  war- 
ranty. Ankeny  v.  Clark,  (Wash.  Ty.)  20  Pac.  Rep.  586. 

1  With  respect  to  the  American  doctrine  as  to  the  covenants  which  the  pur- 
chaser is  entitled  to  require,  Mr.  Rawle,  in  his  able  and  copious  treatise  on  the 
law  of  Covenants  for  Titles,  observes:  "It  is  difficult  to  determine  by  general 
and  precise  rule  what,  on  this  side  of  the  Atlantic,  are  the  "  usual  covenants  "- 
that  is  to  say,  the  covenants  which  a  vendor  should  give,  and  a  purchaser  expect 
—  as,  owing  to  various  causes,  the  practice  of  conveyancing  differs  widely  in  the 
two  countries.  It  is  obvious  that  much  of  the  practice  which  prevails  where  the 
state  of  society  has  long  been  permanent,  the  titles  old,  and  to  a  greater  or  leu 


MARKETABLE  TITLE  TO  KEAL  ESTATE. 

of  the  Atlantic  States  the  generally  prevalent  rule  is  that  in  the 
absence  of  express  provision  to  the  contrary,  the  vendor  can  be 
required  to  covenant  only  against  his  own  acts.1  And  it  has  been 
held  that  if  the  purchaser  enters  into  a  sealed  agreement  of  sale, 
e.  g.,  a  title  bond,  without  requiring  the  vendor  to  insert  provisions 
obliging  him  to  warrant  the  title  generally,  it  will  be  presumed  that 
it  was  the  understanding  and  intention  of  the  parties  that  there  was 
to  be  no  such  warranty.2  Of  course,  if  there  be  an  express  contract 
with  reference  to  the  kind  of  title  the  purchaser  is  to  receive,  the 
covenants  which  he  may  require  will  depend  upon  the  construction 
of  that  contract.8  An  agreement  to  execute  a  deed  clear  of  all 
incumbrances  except  a  certain  ground  rent,  entitles  the  purchaser 
to  a  deed  with  a  covenant  against  incumbrances,  excepting  the 
ground  rent.  And  the  purchaser  may  rely  upon  such  covenant,  and 
is  not  bound  to  insist  upon  the  removal  of  the  incumbrance  as  a 
condition  precedent  to  his  acceptance  of  the  title.4  If  by  mistake 

extent  carefully  examined  at  every  purchase,  loses  its  application  in  a  compara- 
tively new  country,  and  the  same  covenants  which  might  satisfy  a  purchaser  in 
England  or  Massachusetts  might  not  satisfy  a  purchaser  in  Idaho  or  Wyoming. 
As  precision  of  conveyancing  increases,  a  purchaser  is  less  anxious  for  general 
covenants  than  where  he  buys  in  comparative  ignorance  of  the  title,  and  relies 
upon  such  covenants  for  his  protection.  Hence,  a  great  difference  will  be  found 
to  exist  as  to  the  practice,  not  only  on  the  different  sides  of  the  Atlantic,  and 
among  different  States,  but  even  between  different  parts  of  the  same  State." 
Covta.  for  Title  (5th  ed.),  p.  35,  referring  to  Whitehead  v.  Carr,  5  Watts  (Pa.),  369, 
and  Pitcher  v.  Livingston,  4  Johns.  (N.  Y.)  14;  4  Am.  Dec.  229.  These  remarkg 
were  approved  in  Dwight  v.  Cutler,  3  Mich.  566;  64  Am.  Dec.  105. 

1  See  Rawle  Covta.  (5th  ed.)  §  289.  Kyle  v.  Kavanaugh,  103  Mass.  356,  359;  4 
Am.  Rep.  560.  Mead  v.  Johnson,  3  Conn.  592;  Dodd  v.  Seymour,  21  Conn.  480. 
Ketchum  v.  Evertson,  13  Johns.  (N.  Y.)  359;  7  Am.  Rep.  384;  Gazley  v.  Pierce, 
16  Johns.  (N.  Y.)267;  Fuller  v.  Hubbard,  16  Cow.  (N.  Y.)  13;  16  Am.  Dec.  423; 
Van  Eps  v.  Schenectady,  12  Johns.  (N.  Y.)  436;  7  Am.  Dec.  330;  Ryder  v.  Jenny, 
2  Robt.  (N.  Y.)  68.  Withers  v.  Baird,  7  Watts  (Pa.),  229;  32  Am.  Dec.  754;  Espy 
v.  Anderson,  14  Pa.  St.  308,  312;  Cadwalader  v.  Tryon,  37  Pa.  St.  318,  322; 
Lloyd  v.  FarrelL  48  Pa.  St.  78;  Payne  v.  Echols,  (Pa.  St.)  15  Atl.  Rep.  895.  In 
Barlow  v.  Scott,  24  N.  Y.  40,  the  seller  having  represented  that  he  held  under  a 
warranty  deed,  and  both  parties  supposing  such  to  have  been  the  case,  the  pur- 
chaser was  held  entitled  to  require  a  conveyance  with  general  warranty. 

*  Johnston  v.  Mendenhall,  9  W.  Va.  112.  This  distinction  does  not  seem  to 
have  been  recognized  in  Gaither  v.  O'Doherty,  (Ky.)  12  S.  W.  Rep.  306,  where  it 
was  held  that  if  a  title  bond  contain  no  stipulation  as  to  title,  the  vendor  must 
convey  with  warranty. 

'Babcock  v.  Wilson,  17  Me.  372;  35  Am.  Dec.  263. 

4  Bryant  v.  Wilson,  71  Md.  440. 


COVENANTS  WHICH  THE  PURCHASER  HAS  A  KIOHT  TO  DEMATTD.     151 

the  purchaser  accepts  a  quit-claim  instead  of  a  deed  with  full  cove* 
nants,  to  which  under  the  contract  he  is  entitled,  the  seller  may  be 
compelled  to  execute  a  deed  with  such  covenants.1  And  a  pur- 
chaser W!K>  has  been  fraudulently  induced  to  accept  a  quit-claim  deed 
will  be  entitled  to  relief.2  A  grantee  who  reconveys  to  his  grantor 
upon  rescission  of  the  contract,  can  be  required  to  covenant  only 
against  the  acts  of  himself  and  those  who  claim  under  him.8  To 
such  a  covenant  the  original  grantor  will,  of  course,  be  entitled.4  It 
has  been  said  that  if  it  appear  that  both  parties  knew  that  the  title 
of  the  seller  was  liable  to  be  defeated  by  the  happening  of  a  certain 
contingency,  it  will  be  presumed  that  the  seller  engaged  to  convey 
with  special  warranty  only.5  However  this  may  be,  no  ground  for' 
any  such  presumption  can  be  easily  perceived  in  a  case  in  which 
both  parties  were  aware  that  the  title  was  defective,  and  the  vendor 
sold  at  a  fair  price.6  The  seller  often  agrees  to  convey  with  general 
warranty  in  order  to  quiet  the  objections  of  the  purchaser  to  the  title 
It  has  been  held  that  if  there  be  a  cloud  upon  the  title  the  purchaser 
cannot  be  required  to  accept  a  quit-claim  deed.7  It  is  the  duty  of 
the  vendor  to  remove  the  cloud  or  incumbrarice,  or  to  assume  the 
responsibility  thereof  by  executing  a  deed  with  general  warranty. 
A  person  who  joins  in  a  conveyance  of  laud  merely  that  an  objec- 
tion to  the  title  may  be  removed,  cannot,  of  course,  be  required  to 
covenant  generally.8  Heirs  who  are  directed  to  perform  specifically 
the  contract  of  their  ancestor  for  the  sale  of  his  lands  can  be  required 
to  covenant  only  against  their  own  acts.9  In  the  English  practice 
they  are  required  to  covenant  also  against  the  acts  of  the  ancestor,10 
and  there  seems  to  be  no  good  reason  why  they  should  not  be 

1  Point  Street  Iron  Works  v.  Simmons,  11  R.  I.  496. 

'Rhode  v.  Alley,  27  Tex.  443.     See,  also,  Chastain  v.  Staley,  23  Qa.  26. 

1  Concord  Bank  v.  Gregg,  14  N.  H.  331. 

4  Shorthill  v.  Ferguson,  47  Iowa,  284. 

5  Dickinson  v.  Hoomes,  8  Grat.  (Va.)  394. 

•If  the  title  of  the  vendor  is  questionable,  he  should  covenant  generally. 
Fearne  Posth.  Works,  110,  118.  Browning  v.  Wright,  2  Bos.  &  Pul.  13. 

T  Potter  v.  Tuttle  22  Conn.  513. 

8  Hoback  v.  Kilgore,  26  Grat.  (Va.)  442,  445;  21  Am.  Rep.  817. 

•  Hill  v.  Ressegieu,  17  Barb.  (N.  Y.)  162.  Boggess  v.  Robinson,  5  W.  Va.  402 
Hyatt  v.  Seeley,  1  Kern.  (N.  Y.)  56. 

10  2  Sugd.  Vend.  (8th  Am.  ed.)  232.     Browning  v.  Wright,  2  Bos.  &  Pul.  23. 


152  MARKETABLE  TITLE  TO  HEAL  ESTATE. 

required  so  to  covenant  in  America,  at  least  to  the  extent  of  assets 
which  they  may  have  received  from  the  ancestor's  estate.1 

At  common  law  it  was  useless  to  require  covenants  from  a  married 
woman,  since  they  could  not  be  enforced.  In  England,  however, 
and  in  some  of  the  American  States,  it  has  been  held  that  she  maj 
bind  her  separate  estate  in  equity  by  her  covenants.  In  other  State* 
it  is  considered  that  the  power  so  to  bind  her  separate  estate  depends 
upon  the  terms  of  the  instrument  creating  that  estate,  but  now  in 
England,  and  in  certain  of  the  States,  statutory  provisions  exist 
expressly  or  impliedly  empowering  a  married  woman  to  bind  her 
separate  estate  by  her  covenants.  In  other  States  the  power  ie 
expressly  denied  her  by  statute,  except  by  way  of  estoppel.3  Where 
such  power  exists  no  reason  is  perceived  why  the  same  covenants  as 
might  be  required  of  one  under  no  personal  disabilities,  should  not 
be  required  of  her;  otherwise  the  grantee  of  a  married  woman 
might  be  compelled  to  pay  the  purchase  money  after  he  had  been 
evicted  by  an  adverse  claimant,  in  consequence  of  the  rule  that  a 
purchaser  holding  under  a  conveyance  without  covenants  for  title, 
is  without  relief  hi  case  he  loses  the  estate.3 

Persons  executing  mortgages,4  and,  presumably,  deeds  of  trust  to 
secure  debts,  unless  the  instrument  in  either  case  be  a  security  for 
the  purchase  money  of  the  estate,5  must  covenant  against  the  acts  of 
all  persons  whomsoever.  The  same  covenants  may  be  required  of  a 
lessor,8  the  reason  being  that  the  title  is  never  examined  upon  a 
demise  for  years. 

1  Holman  v.  Criswell,  15  Tex.  395.  This  was  denied  in  Hill  v.  Ressegieu,  17 
Barb.  (N.  Y.)  162,  167. 

'  See  generally  as  to  the  power  of  a  married  woman  to  bind  her  estate  by  cove- 
nants for  title,  Rawle  Covts.  (5th  ed.)  §  306  et  seq. 

'Post,  ch.  27. 

«Sugd.  Vend.  (14th  ed.)  551;  Wins.  Real  Prop.  (8th  Am.  ed.)  447.  Crippa  T. 
Reade,  6  Term,  606  ob.  In  Lockwood  v.  Sturtevant,  6  Conn.  372,  384,  the  singu- 
lar objection  was  made  that  covenants  of  seisin  and  of  good  right  to  convey  in  & 
mortgage  are  invalid.  The  objection  of  course  was  held  untenable.  See  Lloyd 
v.  Quimby,  5  Ohio  St.  262,  and  Butler  v.  Seward,  10  Allen  (Mass.),  466,  for 
instances  in  which  [protection  to  the  mortgagee  was  afforded  by  covenants  for 
title. 

» Williams  Real  Prop.  (6th  Am.  ed.)  447,  n.  4. 

•Wms.  Real  Prop.  (6th  Am.  ed.)  447,  n.  1;  Bart.  Conveyancing,  75;  Rawle 
Covts.  (5th  ed.)  §  26. 


COVENANTS  WHICH  THE  PUKCHASEK  HAS  A  EIGHT  TO  DEMAND.     153 

Tenants  in  common  and  joint  tenants  should  covenant  severally,1 
and  the  covenants  of  each  should  be  extended  no  further  than  the 
undivided  share  of  each.*  The  vendor  cannot  be  required  to  cove- 
nant against  acts  of  sovereignty,  or  against  the  public  rights  of  the 
State,  such  as  the  riparian  rights  of  the  public  in  a  river.  The  exer- 
cise of  those  rights,  though  resulting  in  an  eviction,  would  not  oper- 
ate a  breach  of  the  covenant  of  warranty.8  It  seems  that  a  bankrupt 
cannot  be  compelled  to  execute  a  conveyance  with  covenants, 
though  it  is  the  practice  for  him  to  give  covenants.4 

§  69.  FROM  FIDUCIARY  GRANTORS.  One  who  sells  property  in 
which  he  has  no  beneficial  interest,  for  example,  a  trustee,5  executor ' 

1  Coe  v.  Harahan,  8  Gray  (Mass.),  198. 

•Rawle  Covt.  (5th  ed.)  p.  32,  citing  1  Dav.  Con.  (3d  ed.)  114  A  covenant  by 
a  joint  owner  to  the  extent  of  his  interest  binds  him  only  to  that  extent.  Cos- 
ter v.  Mfg.  Co.,  1  Or.  Ch.  (N.  J.)  467. 

1  See  post,  §  143.  Bigler  v.  Morgan,  77  N.  Y.  312.  Here  the  vendor  contracted 
to  convey  by  warranty  deed  to  the  purchaser  a  tract  of  land  having  oyster  beds 
appurtenant  thereto.  It  was  held  that  all  tb.3  contract  bound  the  vendor  to  con- 
rey  was  a  clear  title  to  the  upland,  and  such  interest  in  the  land  covered  by  the 
water  as  the  law  of  the  State  gave  to  the  owner  of  the  upland;  that  the 
riparian  rights  were  subject  to  the  public  rights  of  the  State,  and  that  the  ven- 
dor could  not  be  required  to  warrant  against  them,  or  against  parties  claiming 
privileges  granted  by  the  State. 

4  Sugd.  Vend.  (14th  ed.)  575.  Waugh  v.  Land,  Coop.  133.  Ex  parte  Crowder, 
2  Rose,  327. 

•Dart  V.  &P.  (5th  ed.)  130;  2-Sugd.  Vend.  (14th  ed.)  574(234);  Lewin  Trustees  (1st 
Am.ed.),§441;  Rawle  Covts.  (5th  ed.)§  33.  Fairclothv.Isler.75N.  Car.  551;  Ennis 
v.  Leach,  1  Ired.  Eq.  (N.  C.)  416.  Barnard  v.  Duncan,  38  Mo.  170,  181;  90  Am. 
Dec.  416.  Fleming  v.  Holt,  12  W.  Va.  143,  162;  Tavenner  v.  Barrett,  21  W.  Va. 
656.  If  he  agree  to  convey  with  warranty,  the  agreement  is  void  and  cannot  be 
enforced.  Brackenridge  v.  Dawson,  7  Ind.  383,  387.  He  may  be  required  to 
insert  a  covenant  against  his  own  acts.  Dw.inel  v.  Veazie,  36  Me.  509;  69  Am. 
Dec.  84.  A  fiduciary  vendor  cannot  be  compelled  to  covenant  for  further  assur- 
ance. Bart.  Conv.  70.  Worley  v.  Frampton,  5  Hare,  560.  In  Page  v.  Brown,  3 
Beav.  36,  it  was  held  that  executorial  trustees,  seeking  specific  performance  of  a 
contract  made  by  their  testator,  must  enter  into  such  covenants  as  the  testator 
would  have  been  obliged  to  give. 

•Sumner  v.  Williams,  8  Mass.  162,  201;  5  Am.  Dec.  83,  the  court  saying:  "An 
administrator,  acting  under  a  license  and  exercising  an  authority  to  sell  the  real 
estate  of  his  intestate,  is  not  required  by  any  duty  of  his  office  or  trust  to  enter 
into  a  personal  covenant  for  the  absolute  perfection  of  the  title  which  he  under- 
takes to  convey,  or  for  the  validity  of  the  conveyance  beyond  his  own  acts." 
20 


154  MARKETABLE  TITLE  TO  BF.AT,  ESTATE. 

or  assignee,"1  can  be  required  to  enter  into  no  other  covenant  than 
that  he  has  done  no  act  to  incumber  the  estate.  In  the  English 
practice,  however,  the  purchaser  has  been  held  entitled  to  require 
the  usual  covenants  from  cestuis  que  trust?  and  the  same  rule  has  in 
a  few  instances  been  enforced  in  America,8  The  usual  covenants 
may  be  required  from  an  agent  in  behalf  of  his  principal,4  unless 

Hodges  v.  Saundere,  17  Pick.  (Mass.)  476.  Shontz  v.  Brown,  27  Pa.  St.  123. 
Grantland  v.  Wight,  5  Manf.  (Va.)  295;  Goddin  v.  Vaughn,  14  Grat.  (Va.)  102. 
Covenants  of  title  implied  from  the  words  "grant,  bargain  and  sell,"  in  a  con- 
veyance by  administrators,  impose  no  personal  liability  on  them.  Shontz  Y. 
Brown,  27  Pa.  St.  123,  134.  Nor  those  implied  from  the  words  "grant  and 
demise  "  in  a  lease.  Webster  v.  Conley,  46  111.  14;  92  Am.  Dec.  234.  And,  gen- 
erally, covenants  for  title  will  not  be  implied  as  against  an  executor.  Dow  T. 
Lewis,  4  Gray  (Mass.),  468,  473.  Semble,  that  if  a  committee  of  a  lunatic,  having 
no  power  at  common  law  or  by  statute  to  make  a  lease  of  the  lunatic's  lands, 
execute  such  a  lease,  the  usual  lessor's  covenants  will  be  implied  from  the  word 
demise,  and  the  committee  be  held  personally  liable  on  the  covenant.  Knipe 
v.  Palmer,  2  Wilson,  130. 

'White  v.  Foljambe,  11  Ves.  337,  345.     See,  ante,  §  64. 

*  Sugd.  Vend.  (14th  ed.)  574,  575;  Rawle  Covts.  (5th  ed.)  §  34.    London  Bridge 
Acts,  13  Simons,  176;  Poulet  v.  Hood,  L.  R.,  5Eq.  115.     But  see  Wakeman  T. 
Duchess  of  Rutland,  3  Ves.  283;  Cottrell  v.  Cottrell,  L.   R.,  2  Eq.  330.     Mr. 
Rawle  says  that  the  correct  test  of  the  application  of  the  rule  requiring  ceituit  que 
tnut  to  give  covenants  would  be  the  extent  of  the  purchaser's  liability  to  see  to 
the  application  of  the  purchase  money.     This  means,  it  is  presumed,  that  the  pur- 
chaser could  not  require  covenant*  from  the  ee»tui*  que  trutt  unless  he  was  obliged 
to  see  that  the  purchase  money  was  applied  to  the  purposes  of  the  trust,  and  thus 
to  become  in  a  certain  sense  liable  for  the  acts  of  the  eettuis  que  tru»t  and  of  the 
trustee  in  making  the  sale.     RawleCov.  (5th  ed.)  p.  46,  n.     This  is  doubtless  true 
in  all  jurisdictions  in  which  the  purchaser  upon  a  sale  by  him  could  be  compelled 
to  give  no  more  than  limited  or  special  covenants.     But  it  is  not  clearly  perceived 
how  any  such  rule  can  obtain  in  those  courts  in  which  upon  such  sale  he  would, 
in  the  absence  of  any  special  agreement,  be  required  to  convey  with  general  or 
unlimited  covenants. 

*  Rawle  Covts.  (5th  ed.)  §  34,  citing  Crabtree  v.  Levings,  53  111.  526.  which, 
however,  appears  to  have  decided  no  more  than  that  a  purchaser  of  land  from  one 
who  has  not  the  legal  title  is  entitled  not  only  to  covenants  from  him  in  whom  is 
the  title,  but  also  from  the  person  from  whom  he  bought.     In  Barnard  v.  Duncan, 
38  Mo.  181;  90  Am.  Dec.  416,  the  English  rule  upon  this  point  was  said  not  to 
have  been  recognized  in  this  country. 

4Le  Roy  v.  Beard,  8  How.  (U.  S.)  451;  Taggart  v.  Stanbury,  2  McL.  (U.  8.) 
543.  Vanada  v.  Hopkins,  1  J.  J.  Marsh.  (Ky.)  293;  19  Am.  Dec.  92;  Hedges  v. 
Kerr,  4  Brown  (Ky.),  524,  528.  Bronson  v.  Coffin,  118  Mass.  156;  11  Am.  Rep. 


COVENANTS  WHICH  THE  PURCHASER  HAS  A  RIGHT  TO  DEMAND.     155 

the  power  under  which  the  agent  sells  and  conveys  expressly  requires 
a  conveyance  without  covenants.1  A  vendor  having  an  interest,  as 
well  as  a  power,  may  be  compelled  to  covenant  personally  to  the 
extent  of  his  interest.2  But  while  a  fiduciary  grantor  cannot  be 
required  to  convey  with  the  usual  covenants,  if  he  should,  never- 
theless, execute  such  a  conveyance,  he  will  be  personally  bound  by 
the  covenants,8  even  though  specified  to  be  "  in  his  capacity  as 

335.  Hunter  v.  Jameson,  6  Ired.  (N.  C.)  252,  case  of  personal  property.  Peters  v. 
Farnsworth,  15  Vt.  155;  11  Am.  Dec.  671.  An  agent  authorized  to  convey  lands 
of  the  commonwealth  by  quit  claim  deed  does  not  exceed  his  authority  by  war- 
ranting the  land  against  all  persons  claiming  under  the  commonwealth.  Ward 
v.  Bartholomew,  118  Mass.  161.  A  power  of  attorney  which  authorizes  an  agent 
to  convey  as  fully  and  amply  as  the  principal  could,  authorizes  the  agent  to  con- 
vey with  covenants  of  general  warranty.  Taggart  v.  Stanbury,  2  McLean  (U. 
S.),  543.  There  are  several  cases  in  which  it  has  been  held  that  one  acting  under 
a  power  has  no  authority  to  bind  his  principal  with  covenants  for  title.  Nixon 
v.  Hyserott,  5  Johns.  (N.  Y.)  58;  Gibson  v.  Colt,  7  Johns.  (N.  Y.)  390;  VanEpps 
v.  Schenectady,  12  Johns.  (N.  Y.)  436,  443;  7  Am.  Dec.  330.  Howe  v.  Harrington, 
3  C.  E.  Gr.  (N.  J.  Eq.)  496.  Mead  v.  Johnson,  3  Conn.  592;  Dodd  v.  Seymour, 
21  Conn.  480.  These  decisions  appear,  however,  to  have  been  largely  influenced 
by  the  New  York  and  New  England  rule,  that  an  agreement  to  make  good  title, 
or  a  sufficient  deed,  does  not  entitle  the  purchaser  to  covenants  of  warranty. 

1  Bart.  Ccnv.  73.    Hare  v.  Surges,  4  Kay  &  Johns.  57. 

*  Rucker  v.  Lowther,  6  Leigh  (Va.),  259. 

«Hill  on  Trustees  (3d  Am.  ed.),  413;  Rawle  Covts.  (5th  ed.)  §  36.  Executort 
*nd  administrators:  Mitchell  v.  Hazen,  4  Conn.  495;  10  Am.  Dec.  169;  Belden  v. 
Seymour,  8  Conn.  24;  21  Am.  Dec.  661.  Aven  v.  Beckom,  11  Ga.  1.  Sumner  T. 
Williams,  8  Mass.  162;  5  Am.  Dec.  83,  the  leading  case.  Mellen  v.  Boarman,  13 
8m.  &  M.  (Miss.)  100.  Godley  v.  Taylor,  3  Dev.  (N.  C.)  178.  Lockwood  v.  Gil- 
son,  12  Ohio,  529.  Kauffelt  v.  Leber,  9  Watts.  &  S.  (Pa.)  93.  Mabie  v.  Matte- 
son,  17  Wis.  11,  diet.  Barnett  v.  Hughey,  (Ark.)  15  S.  W.  Rep.  464.  In  Sum- 
ner v.  Williams,  8  Mass.  201;  5  Am.  Dec.  8J5,  the  court  said  that  an  administrator 
or  executor  may  covenant  generally,  "  if  he  chooses  thus  to  excite  the  confidence 
of  purchasers  and  to  enlarge  the  proceeds  of  the  sale,"  and  will,  therefore,  be 
personally  bound.  Such  a  contract  is  neither  unlawful  nor  inconsistent.  In 
Merritt  v.  Hunt,  4  Ired.  Eq.  (N.  C.)  409,  will  be  found  an  instance  where  an 
executor  making  an  auction  sale  of  lands  offered  to  warrant  the  title  himself  in 
order  to  quiet  the  fears  of  intending  purchasers  as  to  the  title.  But  a  covenant 
by  an  executor  in  his  "  capacity  as  executor  and  not  otherwise  "  has  been  held  not 
to  bind  the  executor  personally.  Thayer  v.  Wendell,  1  Gall.  (C.  C.)  87.  So, 
also,  a  covenant  by  executors  that  they  would  warrant  and  defend  "  as  executors 
are  bound  by  law  to  do,"  they  not  being  bound  by  the  lex  rei  sites  to  warrant  at 
all.  Day  v.  Browne,  2  Ohio,  347.  A  covenant  by  executors  "to  the  extent  of 
their  assets "  will  not  bind  them  beyond  the  amount  of  assets  in  their  hands  at 


156  MAKKETABLE  TITLE  TO  BEAL  ESTATE. 

administrator," l  the  reasons  being  that,  if  he  chooses  to  enhance  the 
value  of  the  purchaser's  bargain  by  undertaking  to  assure  the  title, 
thereby  possibly  benefiting  himself  in  an  enlargement  of  the  pro- 
ceeds of  the  sale,  he  must  take  the  consequences  of  his  contract ; 
and,  further,  that,  if  he  were  not  liable,  the  grantee  would  have  no 
remedy  upon  the  covenants.2  It  is  immaterial,  with  respect  to  the 
liability  of  the  grantor,  whether  the  deed  is  signed  by  him  in  his 
individual  or  in  his  fiduciary  capacity.8 

The  rule  that  general  covenants  for  title  cannot  be  required 
from  fiduciaries  and  others  who  convey  en  auter  droit  is  equi- 
table and  just,  so  far  as  it  is  intended  to  protect  such  a 
grantor  from  personal  liability  on  the  covenants.  At  the  same 
time  it  is  obvious  that  the  rule  may  result  in  much  hardship 
to  the  buyer ;  for,  as  will  hereafter  be  seen,  he  may  be  com- 
pelled to  pay  the  purchase  money,  though  he  has  been  evicted 
from  the  estate,  if  the  eviction  be  under  a  title  to  which  his 
grantor's  covenants. do  not  extend.4  It  has  been  held  that  if  it 

the  time  of  eviction.  Nicholas  v.  Jones,  3  A.  K.  Marsh.  (Ky.)  385;  Manifee  v. 
Morrison,  1  Dana  (Ky.),  208.  In  Georgia  fiduciaries  are  not  personally  bound  by 
their  covenants  unless  the  intention  of  personal  liability  be  distinctly  expressed. 
Code  Ga.  2563,  2622;  Clark  v.  Whitehead,  47  Ga.  521;  Shacklett  v.  Ransom,  54 
Ga.  353.  Trustees:  Bloom  v.  Wolf,  50  Iowa,  286,  288.  Klopp  v.  Moore,  6  Kans. 
30.  Graves  v.  Mattingly,  6  Bush  (Ky.),  361.  Murphy  v.  Price,  48  Mo.  247. 
Duval  v.  Craig,  2  Wh.  (U.  S.)  56;  Taylor  v.  Davis,  110  U.  S.  330.  But  the  trus- 
tee will  not  be  bound  if  it  clearly  appear  from  the  face  of  the  deed  that  such  was 
not  the  intention  of  the  parties.  Glenn  v.  Allison,  58  Md.  527.  Agents,  etc.:. 
Stinchfield  v.  Little,  1  Greenl.  (Me.)  231;  10  Am.  Dec.  65.  Duval  v.  Craig,  2 
Wh.  (U.  S.)  56,  diet.  Sterling  v.  Peet,  14  Conn.  245.  Guardian*:  Mason 
v.  Caldwell,  5  Gil.  (Ill.)196;  48  Am.  Dec.  330.  Foster  v.  Young,  35  la.  27.  Whit- 
ing v.  Dewey,  15  Pick.  (Mass.)  433.  Holyoke  v.  Clarke,  54  N.  H.  578.  A  guar- 
dian using  the  words  "grant,  bargain  and  sell,"  will  be  personally  bound  by  the 
covenants  implied  therefrom.  Foote  v.  Clark,  102  Mo.  394;  17  S.  W.  Rep.  981. 

1  Higley  v.  Smith,  1  D.  Chip.  (Vt.)  409;  12  Am.  Dec.  701. 

'Donohoev.  Emery,  9  Met.  (Mass.)  66.  See,  also,  Story  on  Agency,  §  268; 
Appleton  v.  Banks,  5  East.  148;  Knipe  v.  Palmer,  2  Wilson,  180;  Burrill  v. 
Jones,  3  B.  &  Ad.  47;  Norton  v.  Herron,  1  C.  &  P.  648.  If  the  covenants  of  an 
agent  are  sufficient  to  bind  the  principal,  the  agent  will  not  be  bound.  Kent  v. 
Chalfant,  7  Minn.  491. 

*  Belden  v.  Seymour,  8  Conn.  24;  21  Am.  Dec.  661. 

4  Post,  ch.  27.  In  Texas  this  injustice  may  be  prevented,  so  far  as  deeds  of 
trust  to  secure  debts  are  concerned,  by  a  rule  which  permits  the  trustee  to  bind 
the  creator  of  the  trust  with  covenants  for  title.  Thurmond  v.  Brownson,  (W 
Tex.  597;  6  8.  W.  Rep.  778. 


COVENANTS  WHICH  THE  PTTBCHASER  HAS  A  EIGHT  TO  DEMAND.     157 

plainly  appear  from  the  face  of  the  instrument  that  the  fiduciary- 
did  not  intend  to  bind  himself  personally  by  the  covenants,  he  will 
not  be  bound ;  in  such  a  case  the  plainly  expressed  intention  of  the 
parties  controls.1  Covenants  entered  into  by  a  fiduciary  cannot 
bind  the  trust  estate  or  the  cestuis  que  trust,  except,  of  course,  in 
cases  where  he  is  expressly  authorized  to  enter  into  covenants.8  A 
power  to  a  trustee  to  sell  real  estate  upon  such  terms  as  he  may 
deem  expedient  gives  him  no  authority  to  bind  the  estate  by  cove- 
nants.3 And  a  statute  giving  an  administrator  power  to  convey 
land,  gives  him,  by  implication,  no  power  to  bind  the  estate  by 
covenants  for  title.4  A  fiduciary,  conveying  with  general  covenants 
for  title,  will  not  only  be  personally  bound  thereby,  but  he  will  be 
estopped  to  set  up  afterwards  any  interest  in  the  premises  which  he 
may  have  had  at  the  time  of  the  conveyance.9 

§  70.  MINISTERIAL  GRANTORS.  No  covenants  of  any  kind  can 
be  required  from  mere  ministerial  grantors,  such  as  sheriffs,  tax  col- 
lectors and  others  who  are  made  by  law  the  mere  media  for  the 
transfer  of  legal  title.6  Nor  can  any  covenant  be  implied  from  the 
language  of  the  conveyances  which  they  execute.7  If,  however, 
they  choose  to  insert  covenants  for  title,  they  will  be  bound  by 
them.  Thus  it  has  been  held  that  municipal  officers  having  no 
authority  to  bind  the  municipality  will  be  personally  bound  by  cove- 
nants for  title  inserted  in  a  conveyance  by  themselves  in  their 
official  capacity.8  A  tax  collector  who  executes  a  tax  deed  with 

1  Glenn  v.  Allison,  58  Md.  527. 

*  Osborne  v.  McMillan,  5  Jones  L.  (N.  C.)  109.     Klopp  v.  Moore,  6  Kans.  27, 
30.     Kauffelt  v.  Leber,  9  Watts  &  S.  (Pa.)  93.     Lockwood  v.  Gilson,  12  Ohio  St. 
529,  diet.    A  bond  given  by  an  administrator  to  convey  land  of  his  intestate  by 
warranty  deed  is  unauthorized  and  will  not  bind  the  estate.    Mason  v.  Ham,  86 
Me.  573.     The  same  rule  applies  in  sales  of  personal  property.     Worthy  v.  John* 
son,  8  Ga.  236;  52  Am.  Dec.  399. 

•Welch  v.  Davis,  3  So.  Car.  110;  16  Am.  Rep.  630. 

*  Osborne  v.  McMillan,  5  Jones  L.  (N.  Car.)  109. 

•Foster  v.  Young,  35  Iowa,  27.    Heard  v.  Hall,   16  Maw.  458.    See  pott, 
"  Estoppel,"  ch.  21. 

*  Friedly  v.  Scheetz,  9  S.  &  R.  (Pa.)  156;  11  Am.  Dec.  691.    Mitchell  v.  Pinck- 
ney,  13  So.  Car.  203.     The  reason  is  that  the  rule  caveat  emptor  strictly  applies  la 
all  sales  by  persons  acting  in  a  ministerial  capacity.     See  ante,  "  Caveat 
Emptor,"  ch.  5. 

T  Dow  v.  Lewis,  4  Gray  ( Mass. ) ,  468. 

*  Sterling  v.  Peet,  14  Conn.  245. 


158  MARKETABLE  TITLE  TO  REAL  ESTATE. 

covenants  in  the  form  prescribed  by  statute  cannot  be  held  person- 
ally liable  on  those  covenants.1  Covenants  for  title  cannot  be 
required  from  the  crown,  nor  from  the  commonwealth,  nor  the 
federal  government.3  But  it  has  been  held  that  if  the  common- 
wealth convey  with  covenants  of  warranty,  she  will  be  estopped 
from  afterwards  setting  up  a  claim  to  the  property.8 

1  Wilson  v.  Cochran,  14  N.  H.  397.     Gibson  v.  Mussey,  11  Vt.  212. 
1 2  Sugd.  Vend.  ch.  14,  §  111;  Rawle  Covts.  (5th  ed.)  §  37.   State  v.  Crutchfield, 
3  Head  (Tenn.),  113. 
3  Gomm'th  v.  Andre,  3  Pick.  (Mass.)  224;  Comm'th  v.  Pejepscut,  10  Maae.  166. 


CHAPTER  VII. 

ABSTRACT  OF  TITLE. 
IN  GENERAL.     §  71. 
BOOT  OF  TITLE.    §  72. 
DUTY  TO  FURNISH  ABSTRACT.     §  78. 
PROPERTY  IN  THE  ABSTRACT.     §  74. 
TIME  IN  WHICH  TO  EXAMINE  THE  TITLE  AND  VERIFY  THE 

ABSTRACT.    §  75. 

SUMMARY   OF   THE    VARIOUS    SOURCES    OF    OBJECTIONS    TO 
TITLE.     §  76. 
Objections  which  appear  from,  the  instruments  under  which  title  i« 

claimed.    §  77. 

Objections  which  appear  from  the  public  records.    §  78. 
Objections  which  appear  upon  inquiries  in  pais.    §  79. 

§  71.  IN  GENERAL.  In  the  English  practice  an  abstract  of  title 
appears  to  be  an  epitome  of  the  various  documents  in  the  possession 
of  the  vendor  which  evidence  his  title,  su3h  as  deeds,  wills,  and 
affidavits  respecting  births,  marriages,  deaths,  pedigrees,  and  other 
matters  materially  affecting  the  title.1  The  unwillingness  of  the 
vendor  to  allow  the  muniments  of  his  title  to  go  out  of  his  posses- 
sion probably  gave  rise  to  the  custom  of  making  abstracts  of  their 
contents  for  the  leisurely  inspection  of  the  purchaser.  In  America 
an  abstract  has  been  defined  to  be  "  a  statement  in  substance  of 
what  appears  on  the  public  records  affecting  the  title."  3  This  defi- 
nition is  perhaps  sufficiently  exact  for  practical  purposes,  but  it 
should  be  remembered  that  there  may  be  facts  of  vital  importance 
to  the  title  which  nowhere  appear  of  record,  such  as  the  proofs  nec- 
essary to  establish  title  by  descent,  or  title  by  adverse  possession. 
The  abstract  should,  of  course,  show  the  ability  of  the  vendor  to 
establish  all  such  facts  by  competent  evidence.  It  is  customary  in 
some  localities  to  take  the  affidavits  of  persons  cognizant  of  such 
facts,  and  cause  them  to  be  recorded  among  the  land  records  of 
the  county  where  the  land  lies.  These  affidavits,  however,  are 
merely  persuasive  to  the  purchaser,  and  are  inadmissible  as  evidence 
in  any  proceeding  in  which  the  validity  of  the  title  is  attacked.* 

J2  Sugd.  Vend.   (8th  ed.)   ch.  11.     Hollifield  v  Landrum    (Tex.  Civ.  App.), 
71  S.  W.  979,  citing  the  text. 

*  Union  Safe  Dep.  Co.  v.  Cliisholm,  33  111.  App.  647,  citing  Warvelle  Abst.  3. 
•2  Sugd.  Vend.  (8th  ed.)   15  (417). 


160  MARKETABLE  TITLE  TO  REAL  ESTATE. 

In  the  American  practice  the  abstract  shows  not  only  all  convey- 
ances affecting  the  title  back  to  its  root,1  but  all  liens  or  incum- 
brances  of  record  which  may  affect  the  estate  or  interest  which  the 
purchaser  is  to  acquire,  and  in  the  case  of  titles  derived  from  the 
judgments  or  decrees  of  courts  in  judicial  proceeding,  or  from 
the  ministerial  acts  of  officers  of  the  government,  the  existence  of 
all  facts  without  which  the  proceedings  or  acts  in  question  would 
be  not  voidable  merely,  but  absolutely  void.  In  fine,  the  abstract 
is  the  outcome  of  a  carciul  and  accurate  examination  of  the  title, 
and  should  show  all  that  such  an  examination  of  the  title  would  dis- 
close. It  should  also  show  the  essential  parts  of  every  instrument 
in  the  vendor's  chain  of  title,  such  as  the  names  of  the  parties, 
description  of  the  property  conveyed  or  devised,  words  of  grant  or 
devise,  and  the  like.  The  manner  in  which  an  abstract  is  prepared 
is  an  inquiry  not  within  the  scope  of  this  work.  Practical  sugges- 
tions and  forms  will  be  found  in  several  valuable  treatises  upon  the 
subject.2  According  to  the  English  practice,  the  vendor's  solicitor 
prepares  the  abstract  from  the  muniments  of  title  in  his  possession  ; 
and  he  is  held  criminally  responsible  if  he  knowingly  suppresses  an 
instrument  which  would  show  a  defect  in  the  title.  It  is  the  duty 
of  the  purchaser's  solicitor  to  compare  the  abstract  with  the  origi- 
nals, and  if,  by  negligence,  he  fails  to  detect  a  material  discrepancy 
in  the  abstract,  he  will  be  responsible  to  the  purchaser  for  any  loss 
that  may  ensue.  "  This  examination,"  says  Lord  ST.  LEONARDS, 
"  should  never  be  left  to  an  incompetent  person.  In  the  case  of 
wills,  particularly,  the  solicitor  is  bound  to  read  through  the  whole 
will.  Upon  him  devolves  the  duty  of  seeing  that  the  evidence  is 
what  it  purports  to  be,  and  that  the  deeds  and  wills  are  duly 
attested,  and  the  receipts  on  all  deeds  properly  indorsed  and  signed. 
An  estate  has  been  lost  principally  from  the  manner  in  which  the 
receipt  was  indorsed,  which  would  have  led  a  vigilant  purchaser  to 

1  A  certificate  attached  to  a  paper  stating  that  it  is  a  "  full  and  true  abstract  of 
the  title,"  covers  suits  affecting  the  title  as  well  as  conveyances  or  incumbrancea. 
Thomas  v.  Schee,  80  Iowa,  237;  45  N.  W.  Rep.  539. 

*  American:  Warvelle  on  Abstracts,  1892;  Martindale  on  Abstracts,  1890. 
English :  Preston  on  Abstracts;  2  Sugd.  Vend.  ch.  11.  A  case  of  want  of  reason- 
able care,  skill  and  diligence  in  preparing  an  abstract  may  be  seen  in  Thomas  T. 
Schee,  (Iowa)  45  N.  W.  Rep.  539. 


ABSTRACT  OF  TITLE.  161 

inquire  further,  when  he  would  have  discovered  the  fraud  which 
had  been  committed."  l 

An  original  abstract  of  title  showing  unsatisfied  liens  of  record 
may  be  received  in  evidence  in  the  action  by  the  purchaser  for 
breach  of  contract  in  failing  to  make  title.2 

§  72.  BOOT  OF  TITLE.  Title  to  real  property  is  in  most  cases 
evidenced  by  written  instruments,  such  as  deeds  and  wills,  but  it  is 
possible  that  the  title  may  be  complete  though  altogether  unsup- 
ported by  documentary  evidence,  as  in  the  case  of  descent  from  sole 
heir  to  sole  heir  during  a  period  of  sixty  years  or  more.  And, 
again,  there  may  be  titles  which,  with  respect  to  the  documents  or 
records  upon  which  they  rest,  are  apparently  perfect,  yet  by  reason 
of  some  matter  or  thing  not  disclosed  by  these  evidences  of  title  are 
in  reality  worthless,  as  when  some  one  of  the  deeds  in  the  chain  of 
title  is  a  forgery,  or  some  event  has  transpired  by  which  the  estate 
of  the  present  occupant  has  determined ;  e.  (jr.,  the  death  of  a  cestui 
que  vie,  when  the  estate  which  the  vendor  proposes  to  sell  is  held 
for  the  life  of  another  only.  The  rule  caveat  emptor  requires  the 
purchaser  to  inquire  into  all  these  matters,  and  examine  all  of  the 
vendor's  evidences  of  title,  whether  they  are  preserved  in  the  shape 
of  documents  and  public  records  or  consist  simply  of  facts  to  be 
ascertained  by  inquiries  inpais.  This  examination  he  must  carry 
back  until  he  arrives  at  what  is  commonly  called  the  "  root  of  title." 

The  root  of  title  is  title  existing  in  some  one,  through  whom  the 
vendor  claims,  at  a  time  in  the  past  sufficiently  remote  to  bar,  by 
force  of  the  Statute  of  Limitations  or  by  the  lapse  of  time,  all  adverse 
claims  to  the  premises  theretofore  accruing,  or  which  may  accrue  after 
the  removal  of  personal  disabilities  of  possible  adverse  claimants.  The 
general  rule  is  that  the  purchaser  may  require  the  vendor  to  show  a 
title  free  from  defects  and  incumbrances  for  a  length  of  time  that 
would  bar  any  adverse  claim  existing  at  the  beginning  of  that  period, 
including  all  savings  in  favor  of  persons  under  disabilities.3  This 

'2  Sugd.  Vend.  (8th  Am.  ed.)  8  (411). 

'Fagan  v.  Davison,  2  Duer  (N.  Y.),  153. 

*  Williams  Real  Prop.  450;  1  Sugd.  Vend.  (8th  ed.)  ch.  10;  Warvelle  Abst.  610; 
Martindale  Abst.  §  18;  Post  "  Doubtful  Titles,"  §  292.    Paine  v.  Miller,  6  Ves. 
349.     Cooper  v.  Emery,  1  Phil.  838.     Blackburn  v.  Smith,  2  Exch.  783.  Moulton 
v.  Edmonds,  1  De  G.,  F.  &  J.  246. 
21 


162  MARKETABLE  TITLE  TO  BEAT,  ESTATE. 

period  was,  in  England,  fixed  at  sixty  years  until  within  a  compara- 
tively recent  date,  when  it  was  changed  by  statute  to  forty  years.1 
In  the  older  American  States  the  English  practice  of  showing  title 
for  sixty  years  back  has  been  very  generally  followed.  The  statu- 
tory periods  of  limitation  are,  as  a  general  rule  in  those  States,  too 
short  to  afford  absolute  protection  to  a  purchaser.  In  every  case  in 
which  there  is  reasonable  ground  to  believe  that  there  are  adverse 
interests  against  which  the  usual  period  to  which  the  title  is  carried 
back  would  not  prove  a  bar,  the  purchaser  may  require  that  a  title 
be  shown  beyond  that  period  ;  for  example,  in  the  case  of  a  right 
outstanding  in  a  remainderman  or  in  a  person  under  disabilities.5 

In  most  of  the  American  States  west  of  the  Alleghanies,  where 
all  public  grants  of  land  to  individuals  are  comparatively  recent,  it  is 
customary  to  carry  the  title  back  to  its  emanation  from  the  govern- 
ment, and  for  the  purchaser,  when  entitled  to  an  abstract,  to  insist 
upon  one  commencing  with  that  date.3  It  is  apprehended,  however, 
that  even  in  those  States  the  purchaser  can  require  the  vendor  to 
show  a  title  at  no  more  remote  period  than  one  sufficient  to  bar  all 
adverse  claimants,  including  those  under  personal  disabilities  and 
remaindermen,  unless  there  be  something  in  the  case  to  take  it  out 
of  the  general  rule,  that  a  title  founded  on  adverse  possession  for 
the  statutory  period  of  limitation  is  marketable.4 

§  73.  DTTTY  TO  FURNISH  ABSTRACT.  In  England  the  duty 
devolves  upon  the  vendor  to  furnish  an  abstract  of  title  to  the  pur- 
chaser irrespective  of  any  agreement  upon  the  subject,5  the  reason 
being  that  the  purchaser,  in  the  absence  of  any  record  of  the  ven- 
dor's muniments  of  title,  must  be  given  an  opportunity  to  inspect 
them  or  their  equivalents,  unless  the  purchaser  has  agreed  to  take 
the  title,  such  as  it  is,  or,  as  it  is  technically  expressed,  "  without 
requiring  the  vendor  to  produce  his  title."  But  it  is  usual  in  that 

1 1  Sugd.  Vend.  (8th  Am.  ed.)  551  (366). 

1 1  Sugd.  Vend.  (8th  Am.  ed.)  551  (366). 

'Warvelle  Abst.  145.  This  practice  will  probably  continue  long  after  any 
necessity  for  it  exists.  In  the  city  of  Washington,  in  the  District  of  Columbia, 
it  is  customary  to  carry  the  examination  back  to  the  conveyances  by  the  original 
proprietors  of  the  land  on  which  the  city  stands  to  the  government,  now  a  period 
of  about  100  years,  or  five  times  that  of  the  Statute  of  Limitations. 

4  Post,  ch.  31;  Martindale  Abst.  §  17. 

*  2  Sugd.  Vend.  (8th  ed.)  29  (428);  Dart  Vend.  (5th  ed.)  125. 


ABSTRACT  OF  TITLE.  163 

country  to  insert  in  the  contract  or  common  conditions  of  sale  a  pro- 
vision that  the  vendor  shall,  within  a  specified  time,  prepare  at  his 
own  expense  and  deliver  to  the  purchaser  an  abstract  of  the  title.1 
If  there  is  any  doubt  as  to  the  vendor's  ability  to  deliver  a  sufficient 
abstract  by  the  specified  time,  it  is  said  to  be  better  to  omit  this  pro- 
vision, the  reason  being  that  if  the  vendor  fail  to  deliver  the 
abstract  within  the  time  in  which  he  would  be  required  to  furnish 
the  same  independently  of  any  agreement  upon  the  subject,  or  if. 
when  delivered,  it  be  imperfect,  the  purchaser  will  be  absolved  from 
his  obligation  to  make  objections  within  a  limited  time.2  In 
America  the  rule  obliging  the  vendor  to  furnish  an  abstract  has  been 
announced  in  some  cases,8  though  the  same  reasons  for  it  do  not  gen- 
erally exist.  Here  the  purchaser  may  always,  as  a  general  rule, 
ascertain  the  state  of  his  vendor's  title  by  an  examination  of  the 
public  records,  so  that  the  question  who  shall  furnish  the  abstract  of 
title  is  no  more  in  ordinary  cases  than  the  question  who  shall  bear 
the  expense  of  examining  the  title  and  preparing  the  abstract. 
Accordingly  it  has  been  held  in  several  cases  that  in  the  absence  of 
any  agreement  upon  the  subject,  no  duty  devolved  upon  the  vendor 
to  supply  the  purchaser  with  an  abstract  of  the  title.4  It  seems, 

'Dart  Vend.  &  Purch.  (5th  ed.)  125. 

•Southby  v.  Hutt.  2  Myl.  &  C.  207;  Sherwin  v.  Shakespear,  5  De  G.,  M.  &  G. 
517;  Upperton  v.  Nicholson,  L.  R.,  6  Ch.  App.  436 ;  Blacklow  v.  Laws,  2  Ha.  40. 

'Chapman  v.  Lee,  55  Ala.  616.  Mart.  Abst.  9,  citing  Connolly  v.  Penree.  7 
Wend.  (N.  Y.)  131,  and  Carpenter  v.  Brown,  6  Barb.  (N.  Y.)  1-10;  Brewer  v. 
Fox,  62  111.  609. 

4Easton  v.  Montgomery,  90  Cal.  313;  27  Pac.  Rep.  280,  citing  Espy  v.  Ander- 
son, 14  Pa.  St.  312;  Carr  v.  Roach,  2  Duer  (N.  Y.),  20.  See,  also,  Bolton  v. 
Branch,  22  Ark.  435;  Warvelle  Abst.  §  10.  In  Easton  v.  Montgomery,  supra,  it 
was  said  by  HARRISON.  J. :  "  Ordinarily  parties  entering  into  an  executory  agree- 
ment for  the  purchase  and  sale  of  real  estate  make  provisions  therein  specifying 
the  time  allowed  for  examination  of  the  title,  for  furnishing  abstract,  making 
report  of  defects  and  objections,  specifying  the  time  within  which  the  vendor 
may  thereafter  make  his  title  good,  and  the  character  of  the  conveyance  to  be 
executed  by  him;  but,  in  the  haste  attendant  upon  the  excitement  of  a  'boom,' 
these  formal  requisites  are  frequently  omitted,  and  the  construction  of  the  con- 
tract is  left  to  implication  or  established  rules.  It  is  evident  from  the  provision 
inserted  in  the  memorandum,  '  title  to  prove  good  or  no  sale,  and  this  deposit  to 
be  returned,'  that  it  was  contemplated  by  the  parties  that  an  examination  of  the 
title  was  to  be  made  on  behalf  of  the  plaintiff  (purchaser)  and  that  upon  such 
examination  it  might  be  found  defective.  As  no  time  was  specified  within  which 
such  examination  should  be  made,  a  reasonable  time  therefor  was  implied.  The 


164  MABKETABLE  TITLE  TO  KEAL  ESTATE. 

however,  to  be  the  opinion  of  several  text  writers  that  a  different 
rule  applies  as  between  mortgagor  and  mortgagee,  and  that  the  duty 
devolves  upon  the  mortgagor  to  bear  the  expenses  of  searching  the 
title,  upon  the  ground  that  the  mortgagee  is  entitled  to  the  full 
amount  of  his  loan  and  interest,  without  discount  for  expenses 
incurred  in  preparing  the  security  and  ascertaining  its  value.1 

If  the  vendor  agrees  to  furnish  an  abstract  within  a  specified 
time,  but  fail  so  to  do,  the  purchaser  cannot  be  required  to  extend 
the  time;  he  may  rescind  the  contract  and  recover  his  deposit.1 
Where  the  contract  provides  that  an  abstract  shall  be  furnished 
within  a  reasonable  time,  what  is  a  reasonable  time  depends  upon 
the  circumstances  of  each  case.3  An  agreement  to  furnish  an  ab- 
stract is  sufficiently  complied  with  by  notifying  the  vendee  where 
it  can  be  found,  if  it  be  accessible  to  the  vendee,  and  if  he  raises 
no  objection  at  the  time.4  An  objection  grounded  on  the  failure 
to  furnish  an  abstract  within  a  specified  time  is  waived  by  subse- 
quent acceptance  of  the  abstract  without  objection,  and  cannot  be 
urged  by  the  purchaser  as  an  excuse  for  his  failure  to  tender  the 
purchase-money  in  proper  time.5  If  the  vendor  agrees  to  furnish 
an  abstract,  and  furnishes  one  which  shows  a  defective  title, 
the  purchaser  may  rescind  the  contract  and  recover  the  money 

parties  did  not  agree  that  the  condition  of  the  title  should  be  ascertained  from 
any  particular  abstract,  or  from  an  abstract  to  be  furnished  by  the  vendor,  and 
in  this  respect  the  case  is  distinguished  from  Smith  v.  Taylor,  82  Cal.  533 ;  23 
Pac.  Rep.  217,  and  from  Boas  v.  Farrington,  85  Cal.  535 ;  24  Pac.  Rep.  787.  The 
agreement  being  silent  upon  this  point,  it  was  incumbent  upon  the  plaintiff  to 
provide  the  abstract  and  to  satisfy  himself  as  to  the  condition  of  the  title. 
*  *  *  If,  upon  such  examination,  it  appeared  to  him  that  the  title  was  defec- 
tive, it  then  became  his  duty  to  report  to  the  vendor  the  particulars  wherein 
such  defects  were  claimed  to  exist,  and,  in  the  absence  of  any  time  fixed  by  the 
agreement  within  which  the  vendor  should  remove  these  defects  or  satisfy  his 
objections,  a  reasonable  time  would  be  allowed  therefor.  The  burden  is  on  the 
vendee  to  point  out  the  defects  in  the  title."  In  the  case  of  Taylor  v.  Williams, 
45  Mo.  80,  it  was  held  that  an  agreement  of  sale,  containing  the  provision  "  title 
to  be  satisfactory  and  a  warranty  deed  given,"  did  not  impose  on  the  vendor  the 
duty  of  furnishing  an  abstract  of  title.  So,  also,  an  agreement  to  "  make  good 
title  and  give  a  warranty  deed."  Tapp  v.  Nock,  89  Ky.  414 ;  12  S.  W.  Rep.  713. 

1  Mart,  on  Abst.  9,  citing  Willard  on  Real  Est.  &  Conv.  559. 

'Williams  v.  Daly,  33  111.  App.  454;  Howe  v.  Hutchison,  105  111.  501;  Dea 
Moines,  etc.  Real  Est.  Co.  v.  Beale,  78  111.  App.  40. 

'Jackson  v.  Conlin,  50  111.  App.  538. 

4  Papin  v.  Goodrich,  103  111.  86. 

s  Ky.  Distilleries,  etc.  Co.  v.  \V  arwick  Co.  109  Fed.  28 ;  48  C.  C.  A.  303. 


ABSTRACT  OF  TITLE.  165 

paid,  though  the  vendor  had  a  good  title  as  a  matter  of  fact.1 
Where  the  vendor  agrees  to  furnish  an  abstract  within  a  specified 
time,  which  is  not  done,  and  the  purchaser  thereafter  treats  the  de- 
fault as  immaterial  and  continues  his  payments  under  the  con- 
tract, he  will  be  deemed  to  have  waived  the  delivery  of  the  ab- 
stract, and  cannot  recover  his  deposit.2  In  a  case  in  which  time 
was  not  of  the  essence  of  the  contract,  a  vendor  who  agreed  to 
furnish  by  a  specified  time  an  abstract  showing  a  perfect  title,  was 
allowed  to  tender  the  abstract  at  the  hearing  of  a  suit  subsequently 
brought  by  him  for  specific  performance.3 

In  some  localities,  it  seems  that  it  is  common  to  treat  an  abstract 
of  title  as  merchantable  or  unmerchantable,  without  regard  to  the 
nature  of  the  title  it  discloses.*  The  value  of  the  abstract  depends, 
of  course,  upon  the  skill  with  which  it  is  prepared,  and  upon  the 
reputation  and  ability  of  the  compiler.  An  agreement  to  furnish 
an  abstract  would  seem  necessarily  to  imply  that  the  document 
should  be  thorough  and  complete,  and  should  be  made  by  a  com- 
petent person. 

§  74.  PROPERTY  IN  THE  ABSTRACT.  The  purchaser  has  a 
temporary  right  of  property  in  the  abstract  while  the  sale  is  being 
negotiated,  and  the  absolute  ownership  if  the  sale  be  consum- 
mated.6 As  between  mortgagor  and  mortgagee,  it  has  been  held 
that  an  abstract  furnished  by  the  mortgagor  to  assist  the  mort- 
gagee in  examining  the  title  became  a  part  of  the  security  for  the 
loan,  and  might  be  retained  by  the  mortgagee  until  the  mortgage 
was  discharged.8 

§  75.  TIME  IN  WHICH  TO  EXAMINE  THE  TITLE  AND  VERIFY 
THE  ABSTRACT.  The  contract  of  sale  usually  specifies  a  time  in 

1  Boas  v.  Farrington,  85  Cal.  535 ;  24  Pac.  Rep.  787. 

1  McAlpine  v.  Reicheneker,  56  Kan.  100 ;  42  Pac.  339. 

'Gates  v.  Parmly,  93  Wis.  294;  66  N.  W.  253;  67  N.  W.  739. 

*Warvelle  Abstracts,  ch.  1,  §  7.  Proof  by  a  vendor  that  he  furnished  an 
abstract  made  by  the  recorder  of  deeds,  together  with  the  testimony  of  a  num- 
ber of  real  estate  dealers  that  abstracts  furnished  by  such  recorder  were 
merchantable,  establishes,  prima  facie,  the  delivery  of  a  "  merchantable  " 
abstract.  Harper  v.  Tidholm,  155  111.  370;  40  N.  E.  Rep.  575. 

•Coppinger  on  Title  Deeds,  Lond.  1875;  Mart.  Abst.  11.  This  is  the  English 
rule,  and  there  seems  to  be  no  reason  why  it  should  not  apply  in  this  country. 
Roberts  v.  Wyatt,  2  Taunt.  288;  Langlow  v.  Cox,  1  Chit.  98.  2  Sugd.  \rend. 
428,  429;  Warvelle  Abst.  11.  Chapman  v.  Lee,  55  Ala.  610. 

•Holm  v.  Wust,  11  Abb.  Pr.  (N.S.)  (N.Y.)   1113.    In  Williams  v.  Daly,  33 


166  MARKETABLE  TITLE  TO  REAL  ESTATE. 

which  the  purchaser  may  examine  the  title  before  completing  the 
purchase.  If  no  time  be  specified,  he  will  be  entitled  to  a  reason- 
able time  for  that  purpose,  but  cannot  keep  the  contract  open  in- 
definitely so  as  to  avail  himself  of  a  rise  in  the  value  of  the  prop- 
erty or  escape  loss  in  case  of  depreciation.1  He  cannot  be  required 
to  pay  the  purchase-money  before  he  has  examined  the  abstract, 
unless  he  has  expressly  stipulated  so  to  do.2  It  has  been  held  that 
if  the  contract  provide  that  the  purchaser  shall  be  furnished  an 
abstract  of  title,  and  shall  have  a  specified  time  in  which  to  ex- 
amine the  title  and  pay  the  purchase  money,  the  purchaser  must 
determine  in  that  time  whether  he  will  take  the  title,  and  that  he 
cannot  tender  the  purchase  money  after  that  time,  even  though 
no  abstract  of  the  title  was  furnished.3 

The  purchaser  is  entitled  to  a  reasonable  time  within  which  to 
determine  by  investigation  the  validity  of  apparent  liens  disclosed 
by  the  record.4  After  the  purchaser  has  examined  the  abstract,  or 
investigated  the  title  in  the  time  allowed  for  that  purpose,  it  is  his 
duty  to  point  out  or  make  known  his  objections  to  the  title,  if  any, 
so  as  to  give  the  vendor  an  opportunity  to  remove  them.5  This  rule 

III.  App.  454,  it  seems  to  have  been  held  that  an  abstract  made  by  taking  a 
copy  in  writing  from  a  former  abstract  made  by  another  office,  taking  a  letter- 
press copy  from  that  copy  and,  from  the  letter-press  copy,  copying  again,  waa 
not  such  an  abstract  as  the  purchaser  was  entitled  to  require.  As  to  the  valid- 
ity of  copies  of  abstracts  generally,  see  the  observations  of  Mr.  Warvelle  ia 
his  work  on  Vendors,  vol.  1,  p.  295. 

*  Hoyt  v.  Tuxbury,  70  111.  331. 

'Penna.  Min.  Co.  v.  Thomas,  204  Pa.  225;  54  Atl.  101. 
•Kelsey  v.  Crowther,  (Utah)  27  Pac.  Rep.  695. 

*  Allen  v.  Atkinson,  21  Mich.  361,  COOLEY,  J.,  saying  that  when  the  pur- 
chaser showed  an  apparent  incumbrance  of  record,  the  most  that  the  vendor 
could  insist  upon  "  is  that  he  shall  satisfy  himself  within  a  reasonable  time 
whether  the  apparent  incumbrance  is  a  valid  one  or  not.   It  would  be  out  of 
all  reason  to  insist  that  the  vendee,  at  his  peril,  should  take  a  title  appar- 
ently incumbered,  and  that  the  vendor  should  have  a  right  to  demand  the  im- 
mediate performance  of  the  contract  by  the  vendee,  when  apparently  his  own 
deed  would  be  insufficient  to  give  the  complete  title  he  had  agreed  to  convey. 
Nor  do  I  think  thirty  days  was  an  unreasonable  time  to  take  for  this  purpose 
when  the  mortgagee  resided  at  a  distance,  and  whnn  it  does  not  appear  that  the 
situation  of  the  parties  had  in  the  meantime  been  changed,  or  that  anything  had 
occurred  to  render  the  contract  less  fair  and  equal  than  it  was  when  entered  into. 

•Post,  ch.  32.  Easton  v.  Montgomery,  90  Cal.  307;  27  Pac.  Rep.  280. 
Goodell  v.  Sanford,  (Mont.)  77  Pac.  522.  Compare  Lessenich  v.  Sellers,  119 
Iowa,  314;  93  N.  W.  348. 


ABSTRACT  OF  TITLE.  167 

has  been  held  not  to  apply  where  the  defect  is  one  that  cannot,  in 
the  nature  of  things,  be  removed  before  the  time  fixed  for  complet- 
ing the  contract.  Thus,  where  the  objection  was  that  the  abstract 
showed  no  authority  in  the  officers  of  a  corporation  to  execute  a 
deed  through  which  the  vendor  derived  title,  and  it  appeared  that 
the  corporation  had  been  dissolved  since  the  deed  was  executed,  it 
was  held  that  the  purchaser  was  not  in  default  in  failing  to  raise 
that  objection  before  the  day  fixed  for  completing  the  contract.1 
Where  the  conditions  of  sale  provide  that  the  purchaser  shall  have 
a  specified  time  in  which  to  examine  title,  he  may,  of  course,  at 
the  expiration  of  that  time,  abandon  the  purchase,  if  he  finds  that 
the  vendor  has  not  such  a  title  as  the  contract  requires.2  And  even 
though,  at  the  expiration  of  the  specified  time,  the  purchaser  makes 
no  objection  to  the  title,  the  vendor  can  maintain  no  action  on  the 
contract  if  his  title  is  not  such  as  the  purchaser  may  demand.3  But 
the  purchaser  cannot,  at  the  expiration  of  that  time,  recover  back 
his  deposit  unless  he  has  notified  the  vendor  that  the  title  is  unsatis- 
factory, and  that  he  intends  to  rescind.4  The  purchaser  must  make 
all  of  his  objections  at  one  time,  and  within  a  reasonable  time  after 
the  abstract  is  furnished.  He  cannot  induce  the  vendor  to  spend 
money  in  removing  objections,  and  then  raise  others  which  cannot 
be  removed.5  If  the  abstract,  when  furnished,  is  not  such,  as  to 
form  and  fullness,  as  the  purchaser  is  entitled  by  the  contract  to 
require,  he  must  promptly  make  his  objection.  He  cannot  accept 
the  abstract,  keep  it  until  the  time  allowed  the  vendor  in  which  to 
furnish  an  abstract  has  passed,  and  then  insist  upon  its  insuffi- 
ciency as  a  breach  of  the  contract.' 


'McCroskey  v.  Ladd,   (Cal.)   28  Pac.  Rep.  216. 

'Mead  v.  Fox,  6  Cush.   (Mass.)   199. 

1  Packard  v.  Usher,  7  Gray  (Mass.)  529. 

4  Anderson  v.  iStrasburger,  92  Cal.  38;  27  Pac.  Rep.  1095,  and  easea  cited. 

•  Polk  v.  Stevenson,  71  Iowa,  278. 

•Moot  v.  Business  Men's  Assn.,  157  N.  Y.  201;  52  N.  E.  Rep.  1.  la  this 
case  the  contract  provided  for  an  abstract  "  truly  showing  the  condition  of 
the  title."  The  document  furnished  was  a  mere  abstract  of  the  indexes  of 
the  records  in  the  county  clerk's  office,  and  did  not  show  certain  objection* 
to  the  title,  which,  however,  were  of  an  unimportant  kind,  and  which  the 
court  held  the  vendor  had  the  right  to  remove. 


168  MARKETABLE  TITLE  TO  KEAL  ESTATE. 

Where  the  contract  provides  for  time  in  which  to  examine  the 
title,  the  purchaser  will  be  presumed  to  have  investigated  the 
title,  to  have  examined  every  deed  or  instrument  forming  part  of 
it,  especially  if  recorded  and  to  have  known  every  fact  disclosed 
by  the  record  or  the  existence  of  which  was  suggested  by  the 
record.1 

A  provision  in  the  contract  that  the  purchaser  shall  give  written 
notice  of  the  acceptance  of  the  abstract,  is  waived  by  the  accept- 
ance of  verbal  notice  without  objection.2 

§  76.  SUMMARY  OF  THE  PRINCIPAL  SOURCES  OF  OBJECTIONS 
TO  TITLE.  General  Observations.  We  shall  elsewhere  consider  in 
this  work  what  circumstances  render  a  title  so  doubtful  that  it  will 
not  be  forced  upon  a  purchaser.3  It  is  our  purpose  here  merely 
to  point  out  the  several  sources  whence  it  may  appear  that  a  title 
is  absolutely  bad. 

An  absolutely  bad  title  to  real  property,  as  between  vendor  and 
purchaser,  consists  in  the  want  of  any  one  of  the  elements  of  a  good 
title.  These,  as  has  been  shown,  consist  in  the  rightful  ownership 
of  the  property,  the  rightful  possession  thereof,  the  appropriate 
legal  evidences  of  rightful  ownership  and  the  freedom  of  the  estate 
from  liens  or  incumbrances  of  any  kind.4  A  man  may  be  the  right- 
ful owner  of  an  estate,  but  if  he  is  out  of  possession  his  title  is  bad, 
so  far  as  a  purchaser  from  him  is  concerned  ;5  and,  of  course,  if  he 
be  not  the  rightful  owner,  his  title  is  bad  without  reference  to  the 
question  of  possession.  So,  also,  if  he  be  the  rightful  owner  but  is 
wrongfully  in  possession,  as  where  he  commits  a  breach  of  the  peace 
in  ejecting  an  occupant  of  the  premises.  But  he  may  be  both  the 
rightful  owner  and  rightfully  in  possession  under  a  deed  sufficient 
to  pass  the  legal  title,  and  yet  his  title  may  not  be  such  as  a  pur- 
chaser may  require.  For  example,  the  deed  under  which  he  holds 
may  not  have  been  admitted  to  record,  or  may  have  been  admitted 
to  record  upon  an  insufficient  certificate  of  acknowledgment.  The 
title  is  also  absolutely  bad  not  only  where  it  is  open  to  attack  after 

1  Moot  v.  Business  Men's  Assn.,  157  N.  Y.  201,  52  N.  E.  1. 

1  Domestic  Bldg.  Assn.  v.  Guadiano,  195  111.  222,  63  N.  E.  98. 

1  Post,  ch.  31. 

4  Ante,  p.  2. 

•1  Sugd.  Vend.   (8th  ed.)   387,  579. 


ABSTRACT  OF  TITLE.  169 

it  has  passed  to  the  purchaser,  but  also  wherever  the  purchaser  must 
institute  any  proceeding  at  law  or  in  equity  to  secure  himself  in  the 
enjoyment  of  the  estate.  The  purchaser  will  also  be  entitled  to  his 
action  if  the  vendor  have  not  the  quantity  of  estate  which  he  has 
agreed  to  sell  and  convey.  Thus,  he  may  have  only  a  life  estate,  or 
an  estate  for  years,  or  an  estate  upon  condition,  and  his  title  to  the 
same  may  be  clear  and  unimpeachable,  yet  if  by  the  contract  the 
purchaser  is  entitled  to  a  conveyance  of  the  fee  simple,  a  breach 
results,  and  an  action  for  damages  accrues. 

With  respect  to  what  particular  facts  or  circumstances  constitute 
a  good  legal  title,  or  demonstrate  a  complete  want  of  title,  it  must 
suffice  to  say  that  the  inquiry  is  impracticable  here,  since  the  answer 
would  involve  a  review  of  the  whole  body  of  the  law  of  real  prop- 
erty. An  infinite  variety  of  facts  and  circumstances  enter  into  the 
composition  of  every  title,  and  the  existence  or  non-existence  of  any 
one  of  these  may  be  fatal  to  the  title.  Hence,  it  has  been  said  by  a 
great  judge  that  there  is  no  such  thing  as  a  mathematical  certainty 
of  a  good  title.1  But  the  state  of  every  title  is  capable  of  being 
ascertained  or  established  with  a  reasonable  degree  of  certainty. 
The  policy  of  the  law  is  that  as  far  as  possible  title  to  lands,  to  the 
extent  that  it  depends  upon  the  fact  of  alienation  or  transfer  from 
one  person  to  another,  shall  be  evidenced  by  written  instruments  of 
a  solemn  kind,  such  as  deeds,  wills,  judgments  or  decrees.  Also, 
that  these  instruments  shall  be  made  matters  of  public  record  open 
to  the  inspection  of  the  whole  world  ;  and  that  certain  of  them,  that 
is,  deeds,  shall  be  void  for  certain  purposes  if  not  entered,  or  not 
lawfully  entered,  upon  the  public  record.  Also,  that  certain  mat- 
ters collateral  to  the  title,  such  as  liens,  charge  or  incumbrances 
upon  the  estate,  shall  likewise  be  entered  of  record,  so  as  to  bind 
subsequent  purchasers  for  value  and  without  actual  notice  of  their 
existence.  Hence,  it  follows  that  the  sufficiency  of  the  title  is,  in  a 
great  measure,  to  be  determined  by  an  inspection  of  the  public 
records,  and  of  instruments  which  evidence  the  vendor's  title. 
Indeed,  the  great  majority  of  objections  to  title  that  are  commonly 
made  spring  from  these  sources,  such,  for  example,  as  that  the 
vendor  has  no  documentary  evidence  of  his  title,  or  that  some  one  of 
the  deeds  under  which  he  holds  is  defective  on  its  face  ;  or  that  his 

'Lord  HARDWICKE  in  Lyddall  v.  Western,  2  Atk.  20. 
22 


170  MARKETABLE  TITLE  TO  REAL  ESTATE. 

deed  has  not  been  admitted,  or  has  been  improperly  admitted,  to 
record ;  or  that  the  record  discloses  liens  and  incumbrances  upon  the 
estate.  But  it  is  obvious  that  there  may  be  fatal  defects  of  title 
which  neither  appear  from  the  public  records  nor  upon  the  face  of 
any  instrument  under  which  title  is  claimed.  Thus,  a  deed  executed 
by  a  married  woman  is  in  most  jurisdictions  void  unless  her  husband 
joins  as  a  party,  but  the  fact  that  a  grantor  in  a  deed  in  the  vendor's 
chain  of  title  was  a  married  woman  would  not  ordinarily  appear  except 
upon  inquiries  made  among  those  likely  to  know  the  fact.  So  it  is 
possible  for  a  title  to  be  good  though  evidenced  altogether  by  matter 
inpais,  such,  for  example,  as  a  title  by  inheritance  or  by  adverse  pos- 
session for  a  great  number  of  years.  Where  the  defect  of  title  appears 
upon  the  face  of  the  instrument  under  which  title  is  claimed,  or 
from  the  public  records,  the  rules  which  protect  a  purchaser  for 
value  have  no  application,  for  two  obvious  reasons  ;  first,  because  in 
such  a  case  the  purchaser  is  charged  with  notice  of  the  defect ;  and, 
secondly,  because  those  rules  afford  protection  only  against  latent 
equities,  which  may  result  in  a  destruction  of  the  title  and  not 
against  an  absolute  want  of  title,  such  as  results  from  an  instrument 
on  its  face  insufficient  to  pass  the  title ;  for  example,  a  tax  deed 
void  on  its  face  for  want  of  compliance  with  certain  statutory 
requisites  as  to  its  contents.1 

But  while  it  is  impracticable  in  this  work  to  enter  upon  a  consid- 
eration of  the  laws  respecting  real  property  in  all  the  phases  in 
which  they  may  be  material  to  the  question  of  want  of  title  in  a 
vendor,  it  is  believed  that  a  categorical  summary  of  the  principal 
sources  of  objections  to  title,  having  reference  to  those  laws,  will  be 
found  useful  as  an  aid  to  the  memory  in  the  examination  of  a  title. 
An  attempt  has  been  made  to  present  such  a  summary  here,  under 
the  following  heads  :  (1)  Defects  and  Objections  to  Title  which 
appear  upon  the  Face  of  some  instrument  under  which  Title  is 
claimed.  (2)  Defects  and  Objections  to  Title  which  appear  from 
the  Public  Records.  (3)  Defects  and  Objections  to  Title  arising 
from  matters  in  pais  or  those  which  appear  upon  Inquiry  dehors  the 
Public  Records,  and  apart  from  any  Instrument  under  which  Title  is 
claimed.  This  summary,  while  necessarily  general  in  its  character, 

1  Cogel  v.  Raph,  24  Minn.  194.     See  post,  tb^  chapter,  §  79. 


ABSTRACT  OF  TITLE.  171 

embraces,  it  is  believed,  references  to  all  of  the  principal  and  most 
important  sources  of  objections  to  title. 

(I) 

§  77.  DEFECTS  AND  OBJECTIONS  WHICH  APPEAR  UPON  THE 
PACE  OF  SOME  INSTRUMENT  UNDER  WHICH  TITLE  IS  CLAIMED.— 
DEEDS.  Practically  there  are  but  two  vehicles  or  instruments  for  the 
transfer  of  title  to  lands  inter  paries,  namely  :  (1)  Deeds,  including 
letters  patent  or  public  grants ;  and  (2)  Wills.  As  to  deeds,  it  ia 
obvious  that  these,  in  several  respects,  may  appear  upon  their  faces 
insufficient  to  transfer  title.  As  a  general  rule,  in  the  American 
States,  deeds  are  entered  at  large  upon  the  public  records,  and  in 
the  examination  of  titles  many  content  themselves  with  a  perusal  of 
the  record  or  office  copy  of  the  deed ;  but  this  is  never  a  safe  course, 
as  there  may  be  an  imperfection  in  the  deed  which  can  only  appear 
by  an  inspection  of  the  original,  for  example,  a  fraudulent  erasure, 
interlineation,  or  other  alteration  therein.  The  sufficiency  of  a  title 
should  never  be  passed  upon  by  counsel  until  he  has  carefully  perused 
every  instrument  lying  in  the  vendor's  chain  of  title,  and  until  he  is 
satisfied  that  every  such  instrument  has  been  laid  before  him  or  has 
been  seen  by  him.  The  most  disastrous  consequences  have  resulted, 
and  are  in  many  cases  likely  to  result,  from  neglect  of  this  seemingly 
unnecessary  caution. 

The  principal  defects  which  will  appear  upon  the  face  of  an  origi- 
nal deed  are  as  follows : 
Insufficient  Signing. 

See  ante,  9  32;  3  Washb.  Real  Prop.  270. 
Insufficient  Sealing. 

See  ante,  §  32,  and  authorities  there  cited. 
Insufficient  Execution. 

This  may  occur  in  the  case  of  a  conveyance  by  a  corporation,  as,  where 
the  instrument  runs  in  the  name  of  the  officers  of  the  corporation,  and 
not  in  the  name  of  the  corporation  itself;  or  when  the  formalities,  if  any, 
required  by  the  corporate  charter,  or  special  legislation,  have  not  been 
observed.     So,  also,  where  a  deed  executed  in  pursuance  of  a  power,  omitt 
any  of  the  formalities  prescribed  by  the  power. 
Insufficient  Words  of  Conveyance. 
See  ante,  §  19. 

Insufficient  Description  of  the  Premises. 

This,  as  may  be  seen,  may  be  so  vague  and  indefinite  as  to  render  the  im- 
strument  not  only  ineffectual  as  notice  to  subsequent  purchasers,  but  roid 


172  MARKETABLE  TITLE  TO  HEAL  ESTATE. 

as  between  the  parties.     Ante,  §  20.     Wait  v.  Smith,  92  111.  385.    1  Qreenl.  Ev. 
§  301.    Mesick  v.  Sunderland,  6  Cal.  298. 

Illegal  /Subject-matter  and  Consideration. 

Such,  for  example,  as  a  deed  of  assignment  which  makes  an  unlawful 
preference  among  creditors;  or  a  deed  which  imposes  an  unlawful  restraint 
upon  alienation;  or  a  conveyance  for  any  illegal  purpose. 

Incompetency  of  Parties. 

This  may  sometimes  appear  upon  the  face  of  a  conveyance,  with  respect 
either  to  the  grantor  or  the  grantee.  Thus,  a  conveyance  by  a  commissioner  of 
court  which  shows  that  the  commissioner  was  appointed  by  a  court  in  a  State 
other  than  that  in  which  the  premises  lay,  shows  on  its  face  the  incompetency 
of  the  grantor.  So,  also,  a  conveyance  by  an  executor  who  does  not  profess 
to  act  under  a  testamentary  power.  Contee  v.  Lyons,  19  D.  C.  207.  Brush 
v.  Ware,  15  Pet.  (U.  S.)  93.  Dowdy  v.  McArthur,  94  Ga.  577;  21  S.  E.  Rep.  148. 

An  example  of  incompetency  of  the  grantee  occurs  where  the  conveyance 
is  to  a  corporation  not  authorized  by  law  to  hold  real  estate;  or  where  a  trus- 
tee or  fiduciary  becomes  a  purchaser  of  the  trust  estate.  Painter  v.  Hender- 
son, 7  Pa.  St.  48. 

diminutions  in  the  Quantity  of  the  Estate  Intended  to  be  Purchased. 
This  head  has  reference  to  that  part  of  a  deed  which  determines  the  nature 
and  extent  of  estate  conveyed.  The  great  bulk  of  conveyances  in  this 
country  consists  merely  of  transfers  of  the  fee  from  one  person  to  another. 
Limitations  or  conditions  by  which  the  estate  is  liable  to  be  defeated,  do  not 
so  frequently  occur  with  us  as  in  England,  where  deeds  are  perhaps  more 
employed  than  wills  in  family  settlements.  Still,  the  purchaser  must  care- 
fully examine  each  deed  that  lies  in  the  vendor's  chain  of  title,  in  order  to 
see,  among  other  things,  that  each  transfers  as  large  an  interest  as  the  vendor 
has  undertaken  to  sell,  and  that  the  estate  conveyed  is  not  liable  to  be 
defeated  or  diminished  by  any  event  that  may  transpire  in  the  future.  In 
the  large  cities,  it  is  common  to  find  in  deeds,  conditions  that  no  noxious 
trade  shall  be  conducted  on  the  premises,  or  that  no  buildings  of  a  certain 
kind  shall  be  erected  thereon.  Conveyances  of  land  for  religious  purposes 
are  frequently  made  upon  condition  that  the  premises  shall  be  exclusively 
used  for  that  purpose.  So,  in  other  cases  of  gift,  for  example,  a  conveyance 
of  a  court  house  site,  to  revert  to  the  donor  and  his  heirs  when  no  longer 
used  for  that  purpose. 

Covenants  Running  with  the  Land. 

In  many  instances,  covenants  are  inserted  in  deeds  binding  the  grantee  to 
do  certain  collateral  things,  for  example,  to  keep  a  mill  dam  and  raceway  in 
repair,  to  maintain  division  fences  and  the  like.  These,  as  a  general  rule, 
run  with  the  land  and  bind  a  subsequent  purchaser.  So,  also,  covenants  not 
to  use  the  premises  for  specified  purposes.  They  diminish  the  value  of  the 
premises  and  constitute  grounds  upon  which  the  purchaser  may  reject  the 
title.  Post,  §  305. 


ABSTRACT  OF  TITLE.  173 

Constructive  Notice  from  Recitals. 

A.  purchaser  is  not  only  charged  with  notice  of  every  deed  which  lies  in 
the  chain  of  his  vendor's  title,  but  if  any  of  those  deeds  contain  recitals 
which  would  put  a  man  of  ordinary  prudence  upon  inquiry  respecting  the 
rights  of  third  parties  in  the  premises,  he  will  be  charged  with  notice  of 
those  rights,  provided  they  might  have  been  discovered  by  the  exercise  of 
reasonable  diligence.  Thus,  where  a  deed  is  executed  in  pursuance  of  a 
power  of  attorney,  a  subsequent  purchaser  is  charged  with  notice  of  any 
defect  in  the  power.  Morris  v.  Terrell,  2  Rand.  (Va.)  6.  And  except  in 
those  States  where  a  vendor's  lien  must  be  expressly  reserved  by  the  grantor 
on  the  face  of  his  deed,  a  recital  in  the  deed  showing  that  the  purchase 
money  is  unpaid  puts  a  subsequent  purchaser  upon  inquiry,  and  he  must 
ascertain  at  his  peril  whether  the  purchase  money  has  been  paid  since  the 
execution  of  the  deed.  Woodward  v.  Woodward,  7  B.  Mon.  (Ky.)  116. 
Numerous  cases  illustrating  the  doctrine  of  constructive  notice  from  recitals 
in  deeds  under  which  the  purchaser  claims  may  be  found  in  the  reports. 
They  show  the  necessity  of  a  careful  perusal  of  every  deed  in  the  vendor's 
chain  of  title. 

Insufficient  Authentication  for  Record. 

This  is  one  of  the  most  important  points  to  which  the  attention  of  the 
purchaser  must  be  directed.  Authentication  of  a  deed  for  the  purposes  of 
registry  consists  either  in  the  attestation  of  the  deed  by  subscribing  witnesses, 
or  in  the  acknowledgment  thereof  before  certain  officers  in  the  manner  pro- 
vided by  law.  We  have  seen  that,  in  some  of  the  States,  the  acknowledg- 
ment of  the  deed,  or  the  attestation  of  subscribing  witnesses,  is  not  only 
necessary  to  authenticate  the  same  for  registry,  but  to  make  the  deed  valid 
as  between  the  parties.  Ante,  §  23,  et  seq. ,  where,  also,  the  several  requi- 
sites of  a  valid  certificate  of  acknowledgment  are  considered. 

Reservation  of  Liens  or  Charges  upon  the  Estate  Conveyed. 

Liens  for  purchase  money,  annuities,  charges  for  support  and  maintenance 
of  the  grantor,  and  the  like,  are  frequently  reserved  on  the  faces  of  convey- 
ances; and  all  deeds  in  the  chain  of  title  should  be  carefully  examined,  with 
this  fact  in  mind. 

Duty  to  See  to  the  Application  of  the  Purchase  Money. 

In  certain  cases  of  defined  and  limited  trusts,  the  purchaser  of  the  trust 
subject  is  required  to  see  that  the  purchase  money  is  applied  to  the  purposes 
of  the  trust;  otherwise  the  trust  will  attach  to  the  premises  in  his  hands. 
This  must  be  borne  in  miud  in  the  purchase  of  a  trust  estate.  2  Sugd.  Vend. 
(8th  Am.  ed.)  ch.  18;  2  Washb.  Real  Prop.  (4th  ed.)  528  (211). 

Cancellations,     Obliterations,     Erasures,      Interlineations     and 
Alterations. 

These,  or  any  one  of  them,  may  be  of  a  kind  and  character  sufficient  to 
destroy  the  validity  of  the  deed.  Their  existence,  of  course,  can  only  be 
known  by  an  inspection  of  the  original  deed. 


174  MARKETABLE  TITLE  TO  REAL  ESTATE. 

Fraud  Apparent  on  the  Face  of  a  Deed. 

As  a  general  rule,  fraud  seldom  appears  on  the  face  of  a  conveyance,  so  as 
to  charge  a  subsequent  purchaser  with  notice.  It  sometimes  happens,  how- 
ever, that  the  provisions  of  deeds  purporting  to  be  trusts  for  the  benefit  of 
particular  parties  are  framed  so  palpably  in  the  interest  of  the  grantor  that 
the  courts  do  not  hesitate  to  pronounce  them  void,  as  having  been  executed 
for  the  purpose  of  delaying  creditors.  An  example  will  be  found  in  John- 
son v.  Thweatt,  18  Ala.  741,  where  property  of  the  value  of  $7,000  was  con- 
veyed in  trust  to  secure  a  debt  of  $150,  and  several  other  small  debts  not  yet 
due,  the  deed  permitting  the  grantor,  in  the  meanwhile,  to  remain  in  posses- 
sion of  the  premises.  The  deed  was  held  void  on  its  face,  and  a  remote  pur- 
chaser thereunder  charged  with  notice  of  the  fraud. 

Want  of  Statutory  Recitals. 

In  some  of  the  States  it  is  required  by  statute  that  certain  deeds  executed 
in  pursuance  of  a  sale  under  judicial  authority,  or  by  an  officer  acting  in  a 
ministerial  capacity,  such  as  a  tax  collector,  shall  contain  recitals,  showing 
the  concurrence  of  particular  facts  on  which  the  validity  of  the  sale  depends. 
See  3  Washb.  Real  Prop.  222,  229;  Freem.  Void  Jud.  Sales  (2d  ed.),  §  47; 
Blackw.  Tax  Titles,  §  790.  Wherever  such  provisions  exist  they  should  be 
borne  in  mind  in  the  examination  of  a  title. 

PATENTS.  These  must,  of  course,  conform  in  all  their  features  to 
the  requirements  of  the  laws  of  the  State  in  which  they  were  issued.1 
Those  laws  differ  to  such  an  extent  in  the  several  States  that  it  would 
be  impracticable  to  indicate  here  every  particular  in  which  a  patent 
may  be  upon  its  face  defective.  It  should  be  observed,  however, 
that  every  purchaser  under  a  patent  is  charged  with  notice  of  any 
defect  apparent  upon  its  face,  there  being  no  difference  in  that 
respect  between  patents  and  the  deeds  of  individuals.2 

WILLS.  The  most  common  objections  to  title  apparent  upon  the 
face  of  a  will  under  which  title  is  claimed  consist  of  some  restriction, 
limitation  or  qualification  of  the  estate  of  the  devisee,  or  of  some 
charge  or  incumbrance  thereon  created  by  the  will.  As  a  general 
rule  questions  which  might  arise  as  to  the  due  execution  of  the  will 
are  concluded  by  the  sentence  admitting  the  will  to  probate ;  cer- 
tainly in  all  cases  in  which  the  probat  was  resisted.  And  even  after 
an  ex  parte  probat,  it  is  hardly  to  be  presumed  that  the  will  would 
have  been  admitted  with  evidence  upon  its  face  that  it  was  not  legally 

'See  the  case  of  McGarrahan  v.  Mining  Co.,  96  U.  S.  316,  where  it  is  said  by 
Chief  Justice  WAITB  that  every  part  of  the  execution  of  a  patent,  such  as  the 
signature  by  the  proper  officer,  sealing  and  countersigning,  and  every  other  statu- 
tory requirement,  is  essential  to  the  validity  of  the  instrument. 

•Bell  T.  Duncan,  11  Ohio,  192.     Moore  v.  Hunter,  1  Gilm.  (111.)  317. 


ABSTRACT  OF  TITLE.  175 

executed,  as  if,  e.  g.  it  should  lack  the  number  of  witnesses  required 

by  law.  . 

Incompetency  of  the  Testator. 

This  may  sometimes  appear  upon  the  face  of  a  will,  as  when  its  provisions 
are  so  foolish  and  unnatural  as  to  show  that  the  testator  was  devoid  of  testa- 
mentary capacity.  Examples  may  be  found  in  the  books. 

Incompetency  of  the  Devisee. 

This,  of  course,  cannot  occur  when  the  devisee  is  a  living  person  who  can 
be  ascertained,  and  who  is  not  a  subscribing  witness  to  the  will.  But  in 
some  of  the  States  testators  are  prevented  by  law  from  devising  more  than  a 
certain  portion  of  their  real  estate  to  corporations.  And  in  certain  other  States 
devises  to  corporations  of  any  real  property  whatever  are  declared  void. 

trwalidity  of  tJie  Devise. 

This  may  occur  in  several  ways,  e.  g.,  because  of  some  patent  ambiguity 
in  respect  to  the  persons  whom  it  is  intended  shall  take  under  the  will,  or  in 
respect  to  the  subject-matter  of  the  devise;  or,  because  the  will  is  too  vague, 
uncertain  and  indefinite  in  its  provisions;  or,  because  its  provisions  are  unin- 
telligible, or  in  any  respect  unlawful,  as  where  they  create  a  perpetuity. 

Diminutions    in    the    Quantity  of   the    Estate  Intended  to   be 
Purchased. 

In  America  deeds  are  seldom  more  than  simple  transfers  of  the  fee  from 
seller  to  buyer.  Contingent  remainders  and  executory  limitations  are 
rarely  met  with  except  in  wills.  With  testators  who  have  estates  to  bestow 
there  is  usually  a  desire  to  impose  restraints  upon  the  alienation  of  those 
estates,  to  provide  against  possible  untoward  events  of  the  future,  and  to 
secure  to  the  objects  of  their  bounty  and  the  descendants  of  them,  as  long 
as  may  be,  the  benefits  of  their  gifts.  The  consequence  is  that  wills  are 
often  found  to  contain  intricate  and  complicated  dispositions  of  property, 
making  it  necessary  for  all  parties  to  invoke  the  aid  of  the  courts  in  the 
interpretation  of  the  devise.  The  intention  of  the  testator  must  sometimes 
be  extracted  from  a  number  of  seemingly  repugnant  or  inconsistent  provis- 
ions of  the  instrument.  Hence,  the  question  of  what  interest  or  estate  the 
devisee  takes  is  often  a  matter  of  great  nicety  and  difficulty,  and  requires 
for  its  solution  an  intimate  acquaintance  with  the  niles  of  law  which  govern 
in  the  creation  and  limitation  of  estates  and  in  the  construction  of  wills. 
The  purchaser  should  never  complete  the  contract  until  he  has  carefully 
perused  any  will  that  may  lie  in  the  vendor's  chain  of  title. 

Legacies  Charged  on  Realty,  Annuities,  etc. 

Any  will  which  lies  in  the  vendor's  chain  of  title  should  be  carefully 
examined  to  see  that  it  contains  no  legacy,  annuity  or  the  like  that  is  charged 
on  the  realty  in  the  hands  of  the  devisee. 

Fraudulent  Alterations  and  forgeries. 

A  will  is,  of  course,  susceptible  of  fraudulent  alteration  after  it  has  taken 
effect.  An  example  will  be  found  in  Wilson's  Case,  8  Wis.  171.  The  orig- 


176  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

inal  will  should  always  be  inspected  by  the  purchaser;  there  may  be  indica- 
tions upon  its  face  tliat  it  is  a  forgery. 
Insufficient  Signing  and  Attestation. 

Probate  courts  often  exact  with  great  rigor  proof  of  compliance  with  all 
formalities  and  ceremonies  prescribed  by  law  for  the  execution  of  wills,  and, 
therefore,  a  sentence  of  such  a  court  admitting  a  will  to  probate  is  a  reason- 
ably fair  assurance  to  a  purchaser  that  the  will  carries  on  its  face  no  evi- 
dence that  it  was  not  entitled  to  probate.  It  seems,  however,  that  an  ex 
parte  admission  of  a  will  to  probate  is  not  conclusive  upon  persons  in  inter- 
est, and  the  will  is  liable  to  be  avoided  upon  an  issue  devisavit  vd  non.  The 
purchaser  should,  therefore,  satisfy  himself  by  an  inspection  of  the  instru- 
ment that,  for  anything  that  appears  on  its  face,  it  has  been  properly  admit- 
ted to  probate. 

(II) 

§  78.  DEFECTS  AND  OBJECTIONS  TO  TITLE  WHICH  APPEAR 
FROM  THE  PUBLIC  RECORDS.  The  term  "public  records,"  in  the 
sense  in  which  it  is  here  used,  means  not  only  the  books  of  registry  in 
which  deeds,  wills,  judgments  and  the  like  are  entered,  but  all  records 
of  a  judicial  or  official  nature  which  are  open  to  the  inspection  of  the 
public,  such  as  the  minutes  of  court  proceedings,  order  books,  origi- 
nal papers  in  suits  at  law  or  in  equity,  tax-office  records,  land-office 
records,  and  other  records  and  documents  of  a  like  nature. 

(1.)     DEFECTS    AND    OBJECTIONS     TO    TITLE     WHICH    APPEAR    FROM    THE 
REGISTERS    OF    CONVEYANCES,  LIENS  AND  INCUMBRANCES. 

The  registers,  commonly  known  as  "  Deed  Books,"  "  Land 
Records,"  "  Judgment  Lien  Dockets,"  "  Mechanic's  Lien  Docket," 
exist,  it  is  apprehended,  in  all  the  States.  The  uses  and  purposes 
for  which  they  are  intended  are  so  well  known  that  no  remark  about 
them  is  deemed  necessary. 
Absence  of  Record  Evidence  of  Title. 

If  the  public  records  do  not  show  title  in  a  vendor,  that  fact  will,  in  most 
cases,  be  treated  as  a  defect  in  his  title.  If  he  holds  under  a  deed,  that  deed 
should  have  been  entered  of  record,  so  as  to  bind  subsequent  purchasers  and 
creditors.  If  he  has  no  deed,  then  his  title  is  merely  equitable,  unless  he 
claims  by  inheritance  or  adverse  possession  and  is  not  such  as  a  purchaser 
can  be  compelled  to  accept.  And  if,  by  the  contract,  he  is  to  receive  a 
"good  title  of  record,"  it  has  been  held  that  he  may  reject  a  title  by  adverse 
possession.  Ante,  §  6.  But  see  post,  §  292. 
Prior  Conveyances. 

The  possibility  of  a  prior  conveyance  of  the  premises  by  the  vendor,  or  his 
predecessor  in  title,  is  one  of  the  principal  reasons  for  examining  the  public 
registers.  The  prime  object  of  the  registry  acts  is  to  protect  purchasers 


ABSTRACT  OF  TITLE.  177 

against  secret  liens  and  conveyances.  The  general  rule  is  that  a  search  for 
prior  conveyances  by  the  vendor,  or  any  one  through  whom  he  claims,  need 
be  extended  back  no  further  than  the  date  at  which  the  record  shows  title  in 
the  vendor,  or  the  person  against  whom  the  search  is  made.  Rawle  Covt. 
for  Title  (5th  ed.),  §  259,  p.  406. 

Executory  Contracts. 

Executory  contracts  for  the  sale  of  lands  are  very  generally  included  in 
the  registry  acts  of  the  different  States,  and,  therefore,  when  duly  admitted 
to  record,  are  binding  upon  subsequent  purchasers  from  the  vendor  without 
notice.  See  the  statutes  of  the  several  States. 

Homestead  Estates. 

These,  in  some  of  the  States,  are  required  to  be  described  in  writing  by  the 
claimant,  and  the  description  entered  upon  the  public  records.  See  1  Washb. 
Real  Prop.  (4th  ed.)  366  et  seq. 

Mortgages. 

These,  of  course,  must  be  recorded  in  order  to  bind  subsequent  purchas- 
ers without  notice.  See  the  registry  acts  of  the  several  States. 

Deeds  of  Trust  to  Secure  Debts. 

This  is  the  commonest  form  of  incumbrance  in  several  of  the  States,  and 
takes  the  place  of  mortgages  and  vendor's  liens.  It  is,  of  course,  embraced 
in  the  registry  acts  everywhere. 

Declaration  of  Trust. 

This  is  a  declaration  in  writing  by  one  in  whom  the  legal  title  to  land  is 
vested,  that  he  holds  the  title  in  trust  for  certain  specified  purposes,  or  for 
the  use  and  benefit  of  certain  persons.  It  must  be  spread  upon  the  records 
in  order  to  bind  subsequent  purchasers.  Its  nature  and  incidents  may  be 
seen  in  2  Washb.  Real  Prop.  ch.  3,  §  3,  p.  500  (190). 

Defeasances. 

A  defeasance  is  a  separate  instrument,  executed  by  and  between  the  parties 
to  an  original  deed,  by  which  such  original  deed  is  to  be  defeated  upon  the  hap- 
pening of  a  certain  event.  It  is  seldom  met  with  in  this  country,  but  is  some- 
times employed  where  property  has  been  conveyed  by  a  deed  absolute  in 
form,  but  in  fact  a  security  for  the  payment  of  money.  Defeasances  must 
be  recorded  in  order  to  bind  subsequent  purchasers.  2  Washb.  Real  Prop. 
81  (495). 

Judgments. 

A  judgment  is  the  commonest  form  of  incumbrance  on  real  property.  But 
it  is  perhaps  in  no  State  a  lien  as  against  a  purchaser  for  value  and  without 
notice,  until  entered  upon  what  is  commonly  called  the  "  judgment  lien 
docket."  In  searching  for  judgments  the  purchaser  should  be  careful  to  see 
that  the  lien  has  not  been  continued  in  favor  of  a  surety,  who  has  discharged 
the  judgment  and  who  is  entitled  to  be  subrogated  to  the  benefit  of  the  lien. 
This  privilege  has  been  accorded  to  the  surety  in  some  of  the  States,  even 
as  against  a  purchaser  without  notice.  See  Am.  &  Eng.  Encyc.  of  L.  art, 
Subrogation." 
23 


178  MARKETABLE  TITLF.  TO  EEAL  ESTATE. 

Lit  Pendens  and  Attachment. 

The  rule  of  the  common  law  is  that  every  person  is  presumed  to 
notice  of  the  proceedings  of  the  courts,  and  that  a  purchaser  of  property  that 
is  in  litigation  must  take  subject  to  whatever  decree  or  judgment  may  be 
pronounced  in  respect  to  such  property.  But  this  rule  has  been  modified  by 
statutes  in  most  of  the  States,  which  provide  that  no  Us  pendent  or  attachment 
•hall  be  as  valid  against  a  bonafide  purchaser  for  value  without  actual  notice, 
unless  a  memorandum  thereof  describing  the  premises,  the  title  of  the  cause, 
and  the  names  of  the  parties,  shall  have  been  entered  upon  the  register  of  deeds. 
Warvelle  Abstracts,  463,  465;  Story  Eq.  405;  2  Washb.  Real  Prop.  252  (598). 

Mechanics'  Liens. 

See  the  statutes  of  the  respective  States. 

Vendor's  Liens. 

These,  in  several  of  the  States  where  there  has  been  a  conveyance  to  the 
vendor,  must  be  reserved  upon  the  face  of  the  conveyance  in  order  to  bind  a 
subsequent  purchaser.  See  the  laws  of  the  respective  States  in  this  regard. 

Forthcoming  Bonds  and  Recognizances. 

These,  in  some  of  the  States,  have  the  effect  of  j  udgments  as  soon  as  they 
become  forfeited,  and  bind  the  lands  of  the  obligor  from  that  time.  Consult 
the  laws  of  each  State  in  this  regard. 

Official  Bonds. 

Are  by  statute  in  several  of  the  States  made  liens  upon  the  real  property 
of  the  obligor  until  he  is  discharged  from  his  official  obligations.  See 
Warvelle  Abstracts,  p.  456. 

Debts  of  Decedents. 

These  are  very  generally  made  liens  upon  the  estate  of  a  decedent  in  the 
hands  of  his  heirs  or  devisees.  Warvelle  Abstracts,  p.  455.  But  in 
Virginia,  to  make  the  lien  effective  after  one  year  from  the  death  of  the 
decedent,  suit  for  the  administration  of  the  assets  of  his  estate  must  have 
been  begun,  and  a  notice  thereof,  or  Us  pendens,  entered  in  the  register  of 
conveyances.  Va.  Code,  1887,  §§  2667,  3566. 

Miscellaneous  Statutory  Liens. 

We  have  now  enumerated  the  principal  liens  or  incumbrances  which  may 
bind  an  estate  in  the  hands  of  a  subsequent  purchaser.  It  is  probable,  how- 
ever, that  special  or  peculiar  liens  exist  by  statute  in  some  of  the  States, 
Wherever  such  is  the  case  they  should  be  added  to  the  foregoing  summary 
and  borne  in  mind  when  examining  a  title. 

(2.)  DEFECTS  AND  OBJECTIONS  TO  TITLE  WHICH  APPEAR  FROM  PUBLIC 
RECORDS,  OTHER  THAN  REGISTERS  OF  DEEDS  AND  JUDGMENT  LIEM 
DOCKETS. 

Taxes  and  Assessments. 

These  are  everywhere  made  lier  s  upon  the  real  estate  of  the  taxpayer. 
They  are  to  be  searched  for  at  the  tax  offices. 


ABSTRACT  OF  TITLE.  179 

Irregular,  Illegal  and  Invalid  Tax  Sales. 

If  a  tax  deed  is  found  in  the  vendor's  chain  of  title,  it  is  of  vital  import- 
ance to  inquire  (1)  whether  the  tax  or  assessment  was  authorized  by  law; 
(2)  whether  the  tax  or  assessment  was  laid  or  imposed  in  accordance  with 
the  law,  and  (3)  whether  all  the  requirements  of  the  law  preliminary  to  the 
sale  and  execution  of  the  deed  had  been  complied  with.  The  first  inquiry 
is,  of  course,  to  be  determined  by  an  inspection  of  the  law.  The  other  two 
inquiries  may,  in  a  great  measure,  be  determined  by  an  examination  of  the 
records  in  the  tax  offices,  it  being  the  policy  of  the  law  that,  as  far  as  pos- 
sible, the  fulfillment  of  all  of  its  requirements  in  regard  to  the  imposition 
and  collection  of  taxes  shall  be  evidenced  by  documents  returned  to,  and 
entries  made  in  the  records  of  the  tax  office.  As  to  the  various  respects  in 
which  a  tax  title  may  be  defective,  see  Blackwell  on  Tax  Titles;  Black  on 
Tax  Titles;  2  Washb.  Real.  Prop.  221  (541);  Devlin  on  Deeds,  ch.  38,  p.  647. 
By  the  common  law,  the  burden  devolved  on  the  purchaser  of  a  tax  title  to 
show  affirmatively  that  all  the  prerequisites  to  a  valid  sale  for  taxes  had 
been  complied  with,  but  by  statute  in  most  of  the  States  the  tax  deed  is 
made  presumptive  evidence  of  a  valid  tax  and  valid  sale,  and  the  burden 
imposed  upon  the  adverse  claimant  to  show  an  infirmity  in  the  tax  or  the 
sale. 

Want  of  Jurisdiction  in  Judicial  Proceedings. 

The  examination  of  a  title  derived  through  a  sale  under  a  judgment  or 
decree  would  be  an  interminable  affair  if  the  purchaser  were  obliged  to 
inquire  whether  any  error  or  irregularity  existed  in  the  proceedings  for 
which  the  judgment  or  decree  might  be  reversed.  So  far  as  the  proceedings 
antecedent  to  the  sale  is  concerned,  he  is  only  required  to  see  that  the  court 
had  jurisdiction  to  render  the  judgment  or  decree  under  which  the  sale  was 
had.  This,  in  most  cases,  will  appear  from  the  face  of  the  proceedings;  as 
where  the  pleadings  state  a  case  not  within  the  jurisdiction  of  the  court,  or 
where  there  is  nothing  to  show  service  of  process  on  the  defendant,  or  where 
the  pleadings  omit  some  formality  required  by  law  to  give  the  court  jurisdic- 
tion; for  example,  the  want  of  an  affidavit  to  the  bill  in  a  suit  for  the  sale  of 
an  infant's  lauds.  Numerous  other  instances  will  occur  to  the  reader.  But 
the  court  may  have  been  without  jurisdiction  to  render  the  judgment  or 
decree,  and  there  may  be  nothing  upon  the  face  of  the  pleadings  or  the  pro- 
ceedings to  apprise  the  purchaser  of  that  fact.  For  example,  if  A.  should 
file  his  bill  against  his  coparcener,  B.,  for  partition,  fraudulently  omitting  C., 
another  coparcener,  the  decree  in  the  cause  would  not  bind  C.,  who  might 
thereafter  file  his  bill  against  the  purchaser  under  the  decree,  and  have  a 
re-partition  of  the  premises.  In  such  a  case  the  purchaser  could  discover  the 
want  of  jurisdiction  in  the  court  only  by  inquiries  made  in  pai*. 

LM  Pendens. 

By  the  common  law  all  persons  are  charged  with  notice  of  the  proceedings 
of  the  courts,  and  a  purchaser  of  property  whereof  the  title  was  in  litigation 
takes  subject  to  whatever  judgment  or  decree  may  be  pronounced  in  respect 


180  MARKETABLE  TITLE  TO  EEAL  ESTATE. 

thereto.  In  the  absence  of  any  statute  to  the  contrary,  it  is  apprehended  that 
the  purchaser  would  be  bound,  though  he  had  no  actual  notice  of  the  litiga- 
tion, and  though  no  memorandum  thereof  had  been  registered,  docketed  or 
indexed  in  the  "Hgiitij  offices. 

Senior  Patents  or  Grants  of  Public  Lands. 

These,  of  course,  will  appear  from  the  records  in  the  land  offices  of  the 
•BTCBal  States,  and  of  the  United  States. 

Proceedings  in  Eminent  Domain. 

Such,  for  example,  as  a  municipal  ordinance  providing  for  the  opening  of 
a  street  or  alley.  All  persons  are  presumed  to  hare  notice  of  such  proceed- 
ings. See  Warrelle  Abst.  360. 

(Hi) 

§  79.  DEFECTS  AND  OBJECTIONS  TO  TITLE  ARISING  FROM  MAT- 
TERS  IN  PAIS,  OR  THOSE  WHICH  APPEAR  UPON  INQUIRY  DEHOR8 
THE  PUBLIC  RECORDS,  AND  APART  FROM  ANT  INSTRUMENT 
UNDER  WHICH  TITLE  IS  CLAIMED.  If  the  vendor  have  the  actual 
legal  title  to  the  estate,  the  purchaser  is  not  concerned  to  inquire 
whether  any  equities  exist  in  third  parties  by  which  that  title  may  be 
defeated,  unless,  of  course,  there  are  facts  known  to  him  which  should 
lead  him  to  inquire  as  to  the  rights  of  third  parties.  If  this  were  not 
true,  there  would  be  little  assurance  of  safety  in  the  purchase  of  any 
title,  and  there  would  be  practically  no  limit  to  the  inquiries  inpais 
which  a  purchaser  would  be  compelled  to  make.  But  it  is  "to  be 
observed  that  this  rule  applies  only  where  the  vendor  has  the  actual 
legal  title,  in  other  words,  as  has  been  elsewhere  said,  where  the  legal 
title  is  in  A.,  and  the  equitable  title  is  in  B.,  and  a  third  person  buys 
from  A.  without  notice  of  B.'s  equity.1  The  rules  respecting  pu  re  Lasers 
without  notice  are  framed  for  the  protection  of  him  who  purchases 
a  legal  estate  and  pays  die  entire  purchase  money  without  notice  of 
an  outstanding  equity.  They  do  not  protect  a  person  who  acquires 
no  semblance  of  tide.9  In  such  a  case  die  rule  caveat  eniptor 
applies.*  Thus,  as  a  simple  illustration,  if  die  vendor  held  under  a 
forged  deed,  die  purchaser  would  not  be  protected,  while  if  die 
deed  was  genuine,  but  merely  voidable,  as  having  been  procured 
by  fraudulent  representations,  or  as  having  been  executed  in  fraud 

1  Wells  v.  Walker,  29  Ga.  450. 

« Vattier  v.  Hinds,  7  Pet.  (U.  8.)  907,  271;  Sampeyrac  T.  United  States,  7  Pet 
(U.  8.)  222;  Boone  v.  Chiles,  10  Pet.  (U.  8.)  177;  Wilson  T.  Mason,  1  Cranch 
(U.  S.),  45.  Cogel  v.  Raph,  24  Minn.  194.  Snelgrove  T.  Snelgrove,  4  Des.  (8.  C.) 
Eq.  274. 

'Hurst  T.  McNeil,  1  Wash.  (C.  C.)  70.    Daniel  T.  Hollingshed,  18  Ga.  190. 


ABSTRACT  OF  TITLE.  181 

of  creditors,  and  the  purchaser  had  no  notice  of  the  facts,  he  could 
not  be  deprived  of  the  estate.  This  distinction  is  further  illustrated 
by  the  case  of  Texas  Lumber  Manufacturing  Company  v.  Branch.1 
Rueg,  the  owner  of  a  large  real  property,  died,  leaving  a  wife  and  a 
brother  and  sister.  After  the  death  of  Rueg.  his  wife  gave  birth  to 
a  child  by  him,  which  child  died  very  shortly  after  birth,  leaving  its 
mother  as  its  heir,  who  thus  became  entitled  to  the  Rueg  estate. 
But  the  brother  and  sister  of  Rueg,  conceiving  themselves  to  be  his 
heirs,  conveyed  his  lands  to  a  third  person.  Meanwhile,  Rueg's 
wife,  presumably  ignorant  of  her  rights  as  heir  of  her  infant  child, 
laid  no  claim  to  the  estate,  but  married  again  and  died,  leaving  chil- 
dren, who  brought  an  action,  as  her  heirs,  to  recover  the  estate  from 
one  claiming  under  the  deed  executed  by  the  brother  and  sister  of 
Rueg.  The  defendant  pleaded  that  he  was  a  honafide  purchaser  of 
the  lands,  without  notice  of  the  plaintiffs'  rights,  but  the  court 
held  that  the  doctrine  of  "purchaser  without  notice"  did 
not  apply  in  such  a  case,  those  under  whom  the  defendants 
claimed  having  had  no  semblance  of  title  to  the  estate.  But 
while  a  purchaser  for  value  without  notice  cannot  be  affected 
by  matters  in  pais,  which  establish  rights  in  equity  in  favor  of  third 
persons  against  the  vendor,  he  is  not  thereby  excused  from  making 
inquiries  in  pais  which  would  show  the  absence  of  any  legal  title  in 
the  vendor.  The  rule  caveat  emptor  applies  as  well  where  the  want 
of  title  is  to  be  established  by  the  testimony  of  witnesses  only,  as 
where  it  appears  from  the  public  records  or  from  the  instrumento 
under  which  the  vendor  claims.  Among  other  equities  which  may 
avoid  the  title  of  the  vendor,  but  which  do  not  affect  a  purchaser 
for  value  without  notice,  may  be  mentioned  the  following:  The 
right  of  a  third  person  to  impress  the  estate  with  a  resulting  trust ;  * 
a  right  to  treat  as  a  mortgage  a  deed  that  is  absolute  in  form ;  *  a 
right  to  vacate  a  deed  as  having  been  procured  from  the  grantor  by 
force,  fraud,  duress  or  mistake ;  *  the  right  to  vacate  a  deed  executed 

1 60  Fed.  R«p.  201. 

»2  Washb.  Real  Prop.  484  (177). 

•  Hicks  v.  Hicks,  (Tex.)  26  8.  W.  Rep.  227. 

4  Wood  v.  Mann,  1  Sumn.  (C.  C.)  500.  3  Washb.  Real  Prop.  (4th  ed.)  260  (665), 
389.  But  see,  as  to  duress,  Anderson  v.  Anderson,  9  Kans.  116,  where  it  was  held 
that  a  married  woman's  deed,  executed  under  duress,  was  void  even  as  againit  a 
purchaser  for  value  without  notice.  Contra,  White  v.  Graves,  107  Mass.  325. 


182  MARKETABLE  TITLE  TO  REAL  ESTATE. 

in  fraud  of  creditors ;  *  the  right  to  fix  a  lien  upon  the  premises  for 
the  purchase  money ; 2  the  right  to  compel  a  conveyance  of  the  legal 
title  from  the  vendor.     The  general  rule  is  that  a  purchaser  for 
ealue  and  without  notice,  who  has  paid  the  purchase  money  in  full, 
is  not  affected  by  latent  frauds  or  equities  of  any  kind.8 
Incompetency  of  Parties  to  Deeds  or  Wills,   with  Respect   to 
Infancy,    Coverture,    Alienage,    Mental     Capacity    or    other 
Disabilities. 

A  deed  executed  by  a  person  incompetent  to  contract  or  to  convey,  passes 
no  title,  even  as  against  a  purchaser  for  value  without  notice.  So,  also,  a 
conveyance  or  devise  to  an  alien  enemy.  The  purchaser  can,  of  course, 
ascertain  the  competency  of  the  parties  only  by  inquiries  in  pat».  As  a  mat- 
ter of  fact  these  inquiries  are  seldom  made  in  respect  to  remote  grantors,  the 
risk  in  such  cases  being  generally  considered  slight . 
Ad/verse  Occupancy  of  the  Premises. 

The  purchaser  should  never  omit  to  inquire  as  to  the  occupancy  of  the 
premises.  The  record  title  may  be  apparently  perfect,  and  there  maj  be 
nothing  to  indicate  a  want  of  title  in  the  vendor,  but  the  fact  that  the  premi- 
ses are  in  the  adverse  possession  of  a  stranger.  In  such  a  case  he  is  put 
upon  inquiry,  and  charged  with  notice  of  the  rights  of  the  occupant  3 
Washb.  Real  Prop.  (4th  ed.)  317. 

The  Non-performance  of  Conditions  Antecedent  and  Subsequent, 
amd  the  Happening  or  Non-happeni/ng  of  Contingencies  upon 
which  an  Estate  Depends. 

These  should  be  shown  by  affidavits. 

The  Occurrence  of  Marriages,  Births  and  Deaths,  wherever  they 
would  Affect  the  Vendor's  Title. 

All  such  facts  must  be  ascertained  by  inquiries  delwr*  the  record,  and 
should  be  embodied  in  affidavits  to  be  used  in  verifying  the  abstract. 
Forgeries  of  Deeds    or    Wills,  and  Fraudulent  Alterations    or 
Insertions  therein. 

The  purchaser  should  examine  the  original  of  all  deeds,  as  well  as  the 
copies  of  record.  He  takes  the  risk  of  having  the  actual  state  of  the  title 
correspond  with  that  which  appears  of  record.  The  registration  of  a  deed, 
void  from  forgery,  interlineation  or  other  like  cause,  will  not  protect  the 
purchaser.  Gray  v.  Jones,  14  Fed.  Rep.  83.  Reck  v.  Clapp,  98  Pa.  St.  581; 
Arrison  v.  Harmsted,  2  Barr  (Pa.),  191;  Wallace  v.  Harmsted,  8  Wright 
(Pa.),  494;  53  Am.  Dec.  603;  Van  Amringe  v.  Morton,  4  Wharton  (Pa.),  382; 
84  Am.  Dec.  517. 

1 3  Washb.  Real  Prop.  (4th  ed.)  333. 

*  Warvelle  Vend.  699. 

1  Cogel  v.  Raph,  24  Minn.  194.     Flannagan  v.  Oberthier,  50  Tex.  379. 


ABSTRACT  OF  TITLE.  J83 

Dower  and  Curtesy  Rights. 

The  existence  of  these  must  be  ascertained  by  inquiries  dehort  the  record. 
latent  Ambiguities  in  the  Description  of  the  Thing  Granted  or 
Devised,  or  of  the  Persons  who  are  to  Take  as  Grantees  or 
Devisees. 

Where  these  occur  they  must,  of  course,  be  explained  by  evidence  aliuTule, 
if,  indeed,  they  may  be  explained  at  all.     See  1  Greenl.  Ev.  §  297. 
Insufficiency  of  the  Evidence  to  Establish  Title  by  Inheritance. 

If  the  vendor's  abstract  shows  title  in  him  as  heir  it  should  be  sustained  by 
the  affidavits  of  those  having  knowledge  of  the  fact  of  inheritance. 
Insufficiency  of  the  Evidence    to    Establish    Title    by  Adverse 
Possession. 

If  the  vendor  claims  by  adverse  possession  there  should  be  affidavits  to 
show  such  a  possession  under  color  of  title  for  a  period  sufficient  to  bar  the 
rights  of  all  persons,  including  those  under  disabilities  when  the  cause  of 
action  accrued. 

The  Want  of  Jurisdiction  of  the  Person  in  Judicial 
Proceedings. 

Seeante,  "  Caveat  Eraptor,"  §  49.    An  illustration  will  be  found,  ante,  §  78. 
The  Existence  of  Physical  Incumbrances  Upon  the  Premises. 

Such,  for  example,  as  a  private  right  of  way,  a  mill  dam  or  the  like. 
Post,  ch.  31,  §  305. 

Want  of  Possession  under  the  Several  Deeds  in  the  Vendor's 
Chain  of  Title. 

It  is  a  familiar  rule  that  an  unbroken  chain  of  conveyances  down  to  the 
plaintiff  in  ejectment  is  no  evidence  of  title  in  him  unless  possession  under 
and  in  pursuance  of  such  conveyances  appears.  Stevens  v.  Hosmer,  39  N. 
Y.  302.  As  a  matter  of  fact,  however,  in  the  examination  of  a  title  posses- 
sion is  always  presumed  to  have  followed  the  several  conveyances  under 
which  the  vendor  claims,  and  an  inquiry  into  the  fact  of  possession  is  never 
made  unless  there  is  something  in  the  case  to  excite  the  suspicions  of  the 
purchaser. 
Want  of  Delivery  of  Deeds  •  Wrongful  Delivery  of  an  Escrow. 

See  Devlin  on  Deeds.  §§  264,  267,  323. 

The  Existence  of  an  Unrecorded  Deed  within  ilie  Period  During 
which  such  a  Deed  is  by  Statute,  in  some  States,  Allowed  to 
Relate  lack  and  Bind  Subsequent  Purchasers  from  the  Time  of 
Acknowledgment. 

See  the  statutes  of  the  several  States.    Martindale's  Abst.  p.  26. 


CHAPTER  VIII. 

WAIVER  OF  OBJECTIONS  TO  TITLE. 

IN  GENERAL.     §  80. 

WAIVER  BY  TAKING  POSSESSION.    §  81. 

LACHES  OF  PURCHASER.     §  82. 

WAIVER  BY  CONTINUING  NEGOTIATIONS.     §  83. 

WAIVER  IN  CASES  OF  FRAUD.     §  84. 

WAIVER  BY  PURCHASING  WITH  NOTICE  OF  DEFECT.     §  85. 

§  80.  IN  GENERAL.  The  expression  "  waiver  of  objections  to 
title,"  as  generally  used,  means  a  waiver  of  the  right  to  recover 
damages  against  the  vendor  for  inability  to  perform  his  contract  by 
reason  of  a  defective  title,  or  of  the  right  of  the  purchaser  to 
rescind  or  abandon  the  contract  on  the  ground  of  the  insufficiency 
of  the  vendor's  title.1  In  either  case  the  principles  upon  which  the 
existence  of  the  waiver  is  determined  are  the  same ;  and  it  is,  there- 
fore, apprehended  that  no  inconvenience  can  result  from  treating 
the  subject  generally,  without  reference  to  the  particular  form  of 
relief  which  the  vendor  claims  to  have  been  waived.  The  doctrine 
of  waiver  of  objections  to  the  title  relates  chiefly  to  cases  in  which 
the  contract  remains  unexecuted  by  a  conveyance  of  the  premises. 
If  the  purchaser  accept  a  conveyance  without  covenants  for  title, 
the  rule  is  general  that  he  can  have  no  relief  at  law  or  in  equity  if 
the  title  prove  defective.  Strictly  speaking,  however,  this  is  more 
a  matter  of  contract  than  of  waiver  implied  from  the  acts  and  con- 
duct of  the  purchaser.  Still,  there  are  rights  respecting  a  defective 
title  which  the  purchaser  may  waive  even  after  the  contract  has 

1  This  is  without  doubt  the  general  acceptation  of  the  expression  in  the  Ameri- 
can practice.  More  v.  Smedburgh,  8  Paige  (N.  Y .),  600.  But  such  a  definition 
is  perhaps  too  broad  for  the  English  practice,  for  there  it  has  been  held  that  if  a 
purchaser  have  actually  waived  his  right  to  call  for  a  title,  and  afterwards  for 
the  purpose  of  settling  a  conveyance  a  deed  is  produced  which  shows  a  bad  title, 
he  will  not  be  compelled  in  equity  to  accept  the  bad  title.  1  Sugd.  Vend.  347, 
citing  Warren  v.  Richardson,  Yo.  1:  Wilde  v.  Port,  4  Taunt.  334;  Hume  v.  Bent- 
ley,  5  De  G.  &  8m.  520;  Geoghegan  v.  Connolly,  8  Ir.  Ch.  Rep.  598.  Such  a 
case,  however,  is  not  likely  to  arise  in  America,  all  conveyances  as  a  general  rule 
being  there  spread  upon  the  public  records  and  open  to  the  inspection  of  the  pur- 
chaser. The  general  doctrines  relating  to  waiver  of  objections  to  title  will  be 
found  in  Mr.  Pry's  valuable  treatise  on  Specific  Performance  (3d  Am.  «L), 
§1805. 


WAIVER  OF  OBJECTIONS  TO  TITLE.  185 

been  executed  ;  for  example,  the  right  to  rescind  the  contract  on  the 
ground  of  fraud,  assuming  that  the  conveyance  was  accepted  without 
knowledge  of  the  fraud.1 

It  must  be  borne  in  mind  that  a  waiver  of  objections  to  the  title 
is  not  the  equivalent  of  a  waiver  of  all  the  rights  of  the  purchaser 
in  respect  of  the  defective  title,  for  it  may  be  that  the  waiver  was 
brought  about  by  the  reliance  of  the  purchaser  upon  the  covenants 
for  title  that  he  had  a  right  to  expect.  In  other  words,  the  pur- 
chaser does  not,  by  waiving  the  right  to  rescind  the  contract,  or  to 
recover  damages  for  the  violation  thereof  while  it  remains  executory, 
waive  the  right  to  a  conveyance  with  covenants  for  title  adequate 
for  his  protection  in  a  case  in  which  the  contract  entitles  him  to  such 
•ovenants.  An  act  which  amounts  to  a  waiver  of  the  right  to  reject 
a  defective  title  is  not  necessarily  a  waiver  of  the  right  to  compen- 
sation for  the  defect.2  Neither  is  an  agreement  by  the  purchaser 

1  Post,  this  chapter,  §§  82,  84. 

J 1  Dart  Vend.  437;  1  Sugd.  Vend.  343.  Calcraft  v.  Roebuck,  1  Ves.  Jr.  221. 
Roach  v.  Rutherford,  4  Desaus.  (S.  C.)  126;  6  Am.  Dec.  606.  See,  also,  Palmer 
T.  Richardson,  3  Strobh.  Eq.  (S.  C.)  16.  A  sale  of  "all  his  (the  vendor's)  interest 
In  the  devise  made  to  him  by  his  father,  F.  B.,  deceased,  in  a  certain  tract,"  etc., 
is  not  a  contract  of  hazard,  the  reference  to  the  devise  being  merely  descriptive 
of  the  property,  and  the  purchaser  is  entitled  to  indemnity  against  incumbrances 
on  the  land.  Price  v.  Browning,  4  Grat.  (Va.)  68.  In  the  case  of  Evans  v.  Der 
Germania  Turn  Verein,  8  111.  App.  663,  the  title  had  been  examined  and  pro- 
nounced good  by  the  purchaser's  attorneys.  The  purchaser  then  paid  part  of  the 
purchase  money,  took  possession,  made  material  alterations  in  the  premises,  col- 
lected rents,  and  otherwise  treated  the  contract  as  valid  and  subsisting.  After- 
wards, on  a  second  examination  of  the  title  by  other  attorneys,  it  was  pronounced 
"bad,  and  the  purchaser  sought  to  rescind  the  contract.  Rescission  was  refused, 
the  court  saying,  among  other  things,  that  the  contract,  which  was  conditioned 
on  the  purchaser's  acceptance  of  the  title,  had  been  made  absolute  by  his  conduct 
in  the  premises,  but  that  tJie  sellers  were  not  absolved  from  their  obligation  to  concey 
to  the  purchaser  at  the  proper  time  a  good  title,  free  from  incumbrante.  In  Goddin 
T.  Vaughn,  14  Grat.  (Va.)  102,  it  was  intimated  that  a  purchaser  buying  and  taking 
possession  with  notice  of  defect  of  title  waives  his  right  to  insist  upon  covenants 
of  general  warranty  from  the  vendor.  Perhaps  such  a  decision  was  unnecessary, 
as  the  sale  was  by  an  executrix,  from  whom  no  general  covenants  for  title  could 
be  required.  But  the  authorities  cited  by  the  court  sustain  a  materially  different 
proposition,  namely,  that  in  such  a  case  the  purchaser  waives  his  right  to  rescind 
the  contract  or  reject  the  title.  It  can  hardly  be  denied  that  a  purchaser,  after 
being  informed  of  an  objection  to  the  title,  may,  and  in  fact  does  in  many  eases, 
proceed  with  the  bargain  and  look  to  the  covenants  which  he  is  to  receive  for  his 


186  MARKETABLE  TITLE  TO  EEAL  ESTATE. 

to  accept  a  deed  without  warranty  to  be  construed  as  of  itself  a 
waiver  of  the  right  to  require  the  production  of  a  clear  title.  On 
the  contrary,  the  presumption  is  that  the  purchaser  intends  to  insist 
upon  that  right,  inasmuch  as  he  will  have  no  warranty  to  protect 
him  if  the  title  should  prove  defective.1 

Obviously  a  waiver  of  objection  to  the  title  must  be  the  relin- 
quishment  or  abandonment  of  some  right  with  respect  to  the  title 
to  which  the  purchaser  under  the  contract  is  entitled,  and  contem- 
plates objections  which  were  either  unknown  to  the  purchaser  at  the 
time  of  the  contract  or  without  reference  to  which  the  contract  was 
concluded.  If  the  purchaser  bought  only  such  right,  title  or  inter- 
est as  the  vendor  had,  expressly  taking  the  risk  of  the  title,  there 
can  be,  in  the  nature  of  things,  no  opportunity  for  any  question  of 
waiver.  Hence,  it  follows  that  the  waiver  may  be  implied,  (1)  from 
the  acts  and  conduct  of  the  purchaser  with  respect  to  defects  of  title 
coming  to  his  knowledge  after  the  conclusion  of  the  contract,  and 
(2)  from  the  mere  fact  that  the  contract  was  made  by  the  purchaser 
with  knowledge  that  a  clear  and  unincumbered  title  could  not  be 
had.  It  should  be  observed  here  that  waiver  of  objections  to  title 
in  the  sense  in  which  the  term  is  commonly  employed  is  not  an  ele- 
ment of  the  contract  between  the  parties,  but  rather  an  implica- 
tion of  law  from  the  acts  of  the  purchaser.3  Where,  in  a  contract 
for  the  sale  of  land,  a  day  is  fixed  for  the  conveyance  of  the  prop- 
erty, if  the  vendee  wishes  to  object  to  the  title  he  must  give  notice 
of  his  objections  a  reasonable  time  previous  to  the  day  fixed  for 
making  the  conveyance  to  enable  the  vendor  to  remove  the  objec- 
tions to  the  title  and  to  make  the  conveyance  at  the  time  specified, 
or  a  court  of  equity  may  consider  a  strict  performance  of  the  con- 
tract by  a  conveyance  on  the  specified  day  as  waived.8  But  a  pur- 
chaser may  in  some  cases  be  deemed  to  have  waived  his  right  to  a 
strict  performance  of  the  contract  on  a  specified  day  without  being 

protection.  True,  a  purchaser  may  expressly  agree  to  take  the  title,  such  aa  it 
is,  without  warranty,  but  it  seems  scarcely  fair  to  him  to  imply  such  an  agree- 
ment from  the  mere  fact  of  his  taking  possession  with  knowledge  of  the  defectire 
title. 

1  Leach  v.  Johnson,  114  N.  C.  87. 

*1  Sugd.  Vend.  (8th  Am.  ed.)  517  (343). 

'More  v.  Smedburgh,  8  Paige  (N.  Y.),  800. 
24 


WAIVES  OF  OBJECTIONS  TO  TITLE.  187 

held  to  have  waived  his  right  to  rescind  in  case  the  vendor  be 
unable  eventually  to  remove  the  objections  to  the  title.1 

If  the  vendor  can  establish  a  case  of  waiver  of  objections,  he 
should  not  ask  to  have  the  title  referred  to  a  master  or  take  any 
other  step  showing  that  he  does  not  rely  on  the  waiver.1 

A  purchaser  may  waive  or  lose  his  right  to  rescission  by  an 
express  confirmation  of  the  contract,8  or  by  dealing  with  the  prop- 
erty as  his  own  after  knowledge  of  the  circumstances  which  entitle 
him  to  rescission,4  or  by  a  presumed  acquiescence  in  the  title  dis- 
closed by  the  vendor,  even  though  possession  has  not  been  taken.5 
But  the  purchaser  must  have  been  fully  apprised  of  the  facts 6  and 

I  CARR,  J.,  in  Jackson  v.  Ligon,  3  Leigh  (Va.),  194  (179). 

I 1  Sugd.  Vend.  347,  citing  Harwood  v.  Bland,  1  Fla.  &  Ke.  540. 

*1  Sugd.  Vend.  252,  citing  Chesterfield  v.  Janssen,  2  Ves.  146;  Roche  v. 
O'Brien.  1  Bal.  &  Beat.  355;  Cole  v.  Gibbons,  3  P.  Wms.  290;  Morse  v.  Royal, 
12  Ves.  355;  Sandeman  v.  Mackensie,  1  J.  &  H.  613.  The  fact  that  the  purchaser's 
counsel  approves  the  abstract  of  title  submitted  by  the  vendor  does  not  amount 
to  a  waiver  of  all  reasonable  objections  to  the  title.  Deverell  v.  Bolton,  18  Ves. 
505.  An  objection  to  the  title  on  the  ground  of  incumbrances  is  waived  where, 
upon  an  offer  to  procure  releases,  the  vendee's  attorney  says  that  it  is  unneces- 
sary, as  he  proposes  to  rely  upon  a  deficiency  in  the  area  of  the  premises.  Cogs- 
well v.  Boehm,  5  N.  Y.  Supp.  67. 

4  Campbell  v.  Fleming,  1  Ad.  &  El.  40.  2  Sugd.  Vend.  (8th  Am.  ed.)  22  (423). 
An  agreement  by  the  purchasers  that  judgment  might  go  against  them  for  the 
purchase  money  in  consideration  of  the  dissolution  of  an  injunction  against  them 
for  cutting  down  timber,  has  been  held  a  waiver  of  objections  to  the  title. 
McDaniel  v.  Evans,  (Ky.)  14  S.  W.  Rep.  541.  So,  also,  the  execution  of  a  new 
note  for  the  purchase  money  to  an  assignee  of  the  original  note,  in  consideration 
of  further  indulgence.  Wills  v.  Porter,  5  B.  Mon.  (Ky.)  416.  Three  mouths' 
delay  by  the  purchaser  in  giving  notice  of  rescission  after  judgment  in  favor  of 
an  adverse  claimant  has  been  held  no  waiver  of  the  right  to  rescind.  Wilcoi  v. 
Lattin,  93  Cal.  588;  29  Pac.  Rep.  226. 

•Pordyce  v.  Ford,  4  Bro.  C.  C.  494.  Forsyth  v.  Leslie,  77  N.  Y.  Supp.  826; 
74  App.  Div.  517.  A  common  provision  in  the  English  conditions  of  sale,  with 
respect  to  waiver  of  objections  to  the  title  may  be  found  in  the  case  of  Soper 
v.  Arnold,  L.  R.,  14  App.  Cas.  429,  and  is  as  follows:  "All  objections  an-1 
requisitions  (if  any)  in  respect  to  the  title  or  the  abstract,  or  anything 
appearing  therein,  respectively,  shall  be  stated  in  writing  and  sent  to  the 
vendor's  solicitor  within  seven  days  from  the  delivery  of  the  abstract,  and  all 
objections  and  requisitions  not  sent  within  that  time  shall  be  considered  to 
be  waived,  and  in  this  respect  shall  be  deemed  the  essence  of  the  contract." 
This  time  may  be  enlarged  by  acts  of  the  vendor  amounting  to  a  waiver. 
1  Sugd.  267.  Cutts  v.  Thodey,  13  Sim.  206. 

•  Life  Asson.  v.  Siddall,  7  Jur.(N.  S.)  785.  See.  also,  cases  cited  1  Sugd.  Vend. 
(8th  Am.  e<l.)  384.  It  seems  that  if  the  vendor  was  guilty  of  fraud  in  respect  to 


188  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

of  his  legal  rights,1  and  the  effect  of  his  acts,2  and  must  have  acted 
of  his  own  free  will3  before  he  will  be  deemed  to  have  waived  his 
right  to  recission. 

The  purchaser  may,  of  course,  waive  objections  to  the  title  in 
express  terms,  but  in  most  instances  the  waiver  is  implied  from  his 
acts  and  conduct.4  In  the  English  practice  a  waiver  of  objections 
to  the  title  means  a  waiver  of  the  right  to  examine  the  title,  that  is, 
to  require  the  vendor  to  produce  a  title  and  support  it  by  proper 
evidence.  In  each  case  the  question  is  whether  the  purchaser 
intended  to  waive  this  right;5  but  such  an  intention  may  be  inferred 
from  his  acts  without  having  been  directly  expressed,  and  this, 
though  he  swear  that  he  did  not  mean  to  waive  the  objections.6 
Taking  possession  with  notice  of  the  objections,  failure  to  insist  on 
objections  disclosed  by  an  abstract  furnished,  granting  a  lease  of 
the  premises,  have  each  been  held  a  waiver  of  objections.7 

The  purchaser  does  not  waive  his  right  to  recission  for  defect  of 
title  by  reselling  the  premises,  since  it  must  be  presumed  that  he 
intends  to  obtain  a  good  title  himself  in  order  to  perform  his  con- 
tract with  his  vendee.8  An  approval  of  the  title  by  the  purchaser's 
counsel  will  not  bind  the  purchaser  as  a  waiver  of  objections.9  Nor 
will  the  purchaser's  acceptance  of  an  abstract  as  satisfactory 
amount  to  a  waiver  of  objections  not  appearing  on  the  abstract, 
and  if  he  can  prove  the  title  bad  aliunde,  he  will  be  entitled  to 
rescind.10  Nor  do  acts  of  ownership,  where  possession  has  been 
authorized,  amount  to  a  waiver.11  The  acceptance  of  the  abstract 

the  title,  the  purchaser  will  be  presumed  not  to  have  been  appraised  of  his 
rights.  Baugh  v.  Price,  1  Wil.  320. 

1  Cockerell  v.  Cholmeley,  1  Rus.  &  My.  425. 

'Dunbar  v.  Tredennick,  2  Bal.  &  Beat.  317 ;  Waters  v.  Thorn,  22  Beav.  547. 

*1  Sugd.  Vend.  253,  citing  Crowe  v.  Ballard,  3  Bro.  C.  C.  117;  Scott  v. 
Davis,  4  My.  &  Cr.  91;  Wood  v.  Downes,  18  Ves.  120;  King  v.  Savery,  5  H.  L. 
Gas.  627;  Brereton  v.  Barry,  11  Ir.  Ch.  109. 

•1  Sugd.  Vend.  343.  Dunn  v.  Mills,  (Kans.)  79  Pac.  146,  a  case  in  which 
the  purchaser  made  no  objection  to  the  abstract  furnished  by  the  vendor,  and 
took  possession  of  the  premises.  In  Kreibich  v.  Martz,  119  Mich.  343;  78  N. 
W.  124,  a  case  in  which  the  vendor  had  subsequently  conveyed  the  premises 
to  a  stranger,  it  was  held  that  the  purchaser  waived  his  right  to  rescind 
by  requiring  the  stranger  to  furnish  him  with  an  abstract  of  title,  and  nego- 
tiating with  him  respecting  the  payments. 

8  Dowson  v.  Solomon,  1  Drew.  &  Sm.  1. 

•Ex  parte  Sidebotham,  1  Mon.  &  Ay.  655. 

7  Infra,  this   chapter. 

*  Knatchbull  v.  Grueber,  1  Mad.  170.  McCracken  v.  San  Francisco,  16  Cal.  591. 

•Deverell  v.  Bolton,  18  Ves.  505;  Harwood  v.  Bland,  1  Fla.  &  Ke.  540. 

10 1  Sugd.  Vend.  347 ;   1  Yo.  &  Coll.  570. 

"Duncan  v.  Cafe,  2  M.  &  W.  244.  See  post,  "Waiver  by  Taking  Pos- 
session." §  81. 


WAIVER    OF    OBJECTIONS    TO    TITLE.  189 

as  satisfactory,  of  course,  does  not  deprive  the  purchaser  of  the 
right  to  require  that  the  abstract  shall  be  supported  by  proper 
evidence  when  necessary.1  Nor  does  the  purchaser  waive  objec- 
tions to  the  title  by  retaining  the  abstract  a  reasonable  length  of 
time  to  enable  him  to  make  necessary  searches  of  the  record  for 
the  purpose  of  verifying  the  abstract.2 

§  81.  WAIVER  BY  TAKING  POSSESSION.  The  general  rule  is 
that  if  the  purchaser  takes  possession  of  the  estate  with  knowledge 
of  incumbrances  and  defects  of  title,  he  thereby  waives  his  right 
t*  rescind  the  contract,  or  to  recover  damages  against  the 
vendor.*  But  this  rule  does  not  apply  when  the  purchaser  was 
not  aware  of  the  objections  to  the  title  when  he  took  possession  ;4 
nor  where  the  contract  authorizes  him  to  take  possession  before  a 
title  is  made  ;5  nor  where  under  the  contract  he  is  entitled  to  call 

1  Southby  v.  Hutt,  2  My.  &  Cra.  207. 

'Lessenich  v.  Sellers,   119  Iowa,  314;   93  N.  W.  348. 

*1  Sugd.  Vend.  (8th  Am.  ed.)  11,  517.  See  post,  "Waiver  by  Purchasing 
with  Notice  of  Defect,"  §  85.  Vancouver  v.  Bliss,  11  Ves.  464;  Ex  parteSide- 
botham,  1  Mon.  &  Ayr.  655;  2  Mon.  &  Ayr.  146;  Calcraft  v.  Roebuck,  1  Ves. 
Jr.  226.  Tompkins  v.  Hyatt,  28  N.  Y.  347 ;  Caswell  v.  Black  River  Mfg.  Co., 
14  Johns.  (N.  Y.)  453.  Christian  v.  Cabell,  22  Grat.  (Va.)  99.  Barnett  v. 
Garnis,  8  Ala.  373.  Mitchell  v.  Pinckney,  13  So.  Car.  203,  213;  Roach  v. 
Rutherford,  4  Desaus.  (S.  C.)  126;  6  Am.  Dec.  606;  Palmer  v.  Richardson,  3 
Strobh.  Eq.  (S.  C.)  16.  Craddock  v.  Shirley,  3  A.  K.  Marsh,  (Ky.)  1139. 
Richmond  v.  Gray,  3  Allen  (Mass.),  25.  McCauley  v.  Moses,  43  Ga.  577.  In 
Beck  v.  Simmons,  7  Ala.  76,  it  was  said  by  OBMOND,  J. :  "  It  would  be  contrary 
to  equity  and  good  conscience  to  permit  one  who  proceeds  so  far  in  a  pur- 
chase as  to  obtain  possession  with  knowledge  of  a  defect  in  the  title  to  object 
afterwards  the  want  of  a  title  as  a  reason  for  not  complying  with  his  con- 
tract. If  he  knows  that  a  defect  can  only  be  obviated  by  a  judicial  proceeding 
it  is  impossible  to  suppose  that  the  time  stipulated  for  the  completion  of  the 
contract  was  considered  by  him  an  essential  ingredient  of  the  contract,  as  it 
could  not  be  known  what  length  of  time  it  might  take  to  obtain  the  title.  The 
question,  therefore,  in  such  cases  is  not  whether  the  party  was  able  to  make  the 
title  on  the  day  stipulated,  but  whether  there  was  unreasonable  delay  in  obtain- 
ing it."  Citing  Seton  v.  Slade,  7  Ves.  265 ;  Colton  v.  Wilson,  3  P.  Wms.  190. 

41  Sugd.  Vend.  (8th  Am.  ed.)  12.  Stevens  v.  Guppy,  3  Rus.  171;  Kirtland 
v.  Pounsett.  2  Taunt.  145 ;  Dowson  v.  Solomon,  1  Drew.  &  Sm.  1 ;  Hearne  v. 
Tomlin,  Peake.  Ca.  192.  Gaus  v.  Renshaw,  2  Pa.  St.  34;  44  Am.  Dec.  152. 
But  see  Briggs  v.  Gillam,  cited  in  1  Rich.  Eq.  (S.  C.)  407,  408,  where  it  wa* 
held  that  a  party  who  goes  into  possession  without  knowledge  of  the  title, 
and  who  afterwards,  coming  to  the  knowledge,  continues  in  possession  for  a 
considerable  time,  using  the  property  as  his  own,  will  be  compelled  to  accept 
such  title  as  the  vendor  can  make. 

•  1  Sugd.  Vend.  343,  citing  Dixon  v.  Astley,  1  Mer.  ch.  4,  §  4 ;  Wright  v. 
Griffith,  1  Ir.  Ch.  695;  Sibbald  v.  Lourie,  18  Jur.  141;  Thompson  v.  Dulles,  5 
Rich  Eq.  (S.  C.)  370;  Stevens  v.  Guppy,  3  Rus.  171;  Hendricks  v.  Gillespie,  25 
Grat.  (Va.)  181.  This  exception  renders  the  rule  comparatively  of  little  import- 
ance in  America,  for  in  the  vast  majority  of  cases,  especially  those  in  which  the 


MARKETABLE  TITLE  TO  EEAL  RESTATE. 

for  a  good  title  and  takes  possession  with  the  concurrence  of  the 
vendor  ;*  nor  where  the  vendor  had  agreed  to  remove  the  objection 
to  the  title.2  There  must  also  be  circumstances  to  show  that  the 
purchaser  intended  to  accept  such  title  as  could  be  made,  and  to 
rely  for  his  redress  upon  the  covenants  for  title  which  he  was  to 
receive  from  the  vendor.3  It  is  obvious  that  great  injustice  may  be 
done  the  purchaser  by  a  too  liberal  interpretation  of  his  acts  as  a 
waiver  of  objections  to  the  title,  and  there  are  decisions  which 
restrict  such  conclusions  to  cases  in  which  an  intention  to  waive 
the  objections  by  taking  possession  clearly  appears.4  The  mere  act 
of  taking  possession  of  real  estate  and  exercising  acts  of  ownership 
over  it  will  not  preclude  the  purchaser  from  his  right  to  examine 
the  title,  unless  the  court  is  satisfied  that  he  intended  to  waive  and 
has  actually  waived  such  right.  The  waiver  is  a  question  of  inten- 
tion and  one  of  fact  from  all  the  circumstances,  and  not  an  arbi- 
trary presumption  of  law  from  the  mere  fact  of  taking  possession.5 
But  if  he  exercises  acts  of  ownership  after  notice  or  information  of 
defects  in  the  title,  he  will,  as  a  general  rule,  be  deemed  to  have 

payment  of  the  purchase  money  and  the  execution  of  the  conveyance  are 
deferred,  the  contract  provides  that  the  purchaser  shall  have  possession.  In 
England  it  is  the  common  practice  to  provide  in  the  conditions  of  sale  that 
the  purchaser  may  take  possession  without  prejudice  to  his  right  to  object  to 
the  title.  See  Adams  v.  Heathcote,  10  Jur.  301. 

'Dart  Vend.  (5th  ed.)  434;  1  Sugd.  Vend.  (8th  Am.  ed.)  337.  Magaw  v. 
Lothrop,  4  Watts  &  S.  (Pa.)  321.  Burroughs  v.  Oakley,  3  Swan,  159.  Bur- 
nett v.  Wheeler,  7  M.  &  W.  364.  In  this  case  it  was  held  that  an  express 
agreement  to  make  a  good  title  bound  the  vendor  at  law  to  remove  defects  in 
the  title  kntyvn  to  the  parties  at  the  date  of  the  contract,  and  which  were 
capable  of  being  removed.  The  right  to  rescind  is  not  lost  by  a  verbal  waiver 
of  euch  agreement.  Goss  v.  Nugent,  2  Nev.  &  Man.  35. 

1  Burnett  v.  Wheeler,  7  M.  &  W.  364,  supra;  Duncan  v.  Cafe,  2  M.  &  W. 
244.  In  Barton  v.  Rector,  7  Mo.  524,  where  by  the  contract  the  purchaser  was 
to  have  a  conveyance  with  general  warranty,  he  was  allowed  to  rescind 
though  he  bought  with  notice  of  incumbrances  on  the  land. 

1  Jones  v.  Taylor,  7  Tex.  240 ;  56  Am.  Dec.  40 ;  Hurt  v.  McReynolds,  20  Tex. 
595;  Hurt  v.  Blackstone,  20  Tex.  601;  Littlefield  v.  Tinsley,  22  Tex.  259. 

4  In  Corey  v.  Matheson,  7  Lans.  (N.  Y.)  80,  it  was  said  by  MTTLLIW,  P.  J. : 
"It  has  been  repeatedly  said  that  a  purchaser  who  takes  and  retains  possession  of 
lands  under  a  contract  of  purchase  is  estopped  from  alleging  a  defect  in  the  ven- 
dor's title.  1  Billiard  on  Vend.  4,  223;  Viele  v.  R.  Co.,  20  N.  Y.  184.  But  the 
proposition  thus  broadly  stated  is  not  supported  by  any  adjudged  case  that  I 
have  been  able  to  find.  *  *  *  When  the  defect  in  the  title  is  such  as  neces- 
sarily to  lessen  the  value  of  the  property,  it  will  not  be  held  waived  except  upon 
the  most  conclusive  evidence  that  it  was  his  intention  so  .to  do,"  citing  King  v. 
King,  1  Myl.  &K.  442;  Burroughs  v.  Oakley,  3  Swanst.  159;  Minor  v.  Edwards, 
12  Mo.  137;  49  Am.  Dec.  121.  See,  also,  to  the  same  effect,  Bank  of  Columbia 
v.  Hagner,  1  Pet.  (U.  S.)  455.  Jones  v.  Taylor,  7  Tex.- 240;  56  Am.  Dec.  4S. 

•  Page  v.  Greeley,  75  111.  400. 


WAIVEB  OF  OBJECTIONS  TO  TITLE.  191 

waived  his  objections  to  the  title.1  It  has  been  held  that  a  pur- 
chaser taking  possession  with  knowledge  that  the  vendor  has  made 
fraudulent  representations  as  to  the  title,  though  he  may  thereby 
waive  his  right  to  rescind  the  contract,  does  not  waive  his  right  to 
recover  damages  for  the  fraud  by  action  of  deceit.2 

When  the  purchaser  becomes  aware  of  facts  respecting  the  title 
which  gives  him  a  right  to  rescind  the  contract  he  must  exercise 
that  right  promptly.  It  is  an  evidence  of  bad  faith  that  he  raises 
no  objection  to  the  title  on  account  of  known  defects  or  incum- 
brances,  until  he  is  sued  for  the  purchase  money.3  The  question 
whether  or  not  the  purchaser  waived  his  right  to  rescind  the  con- 
tract by  taking  possession  when  he  knew  the  title  to  be  defective,  is 
not  a  question  of  law,  but  a  question  of  fact  to  be  determined  by 
all  the  circumstances  surrounding  the  transaction.4  If  the  pur- 
chaser makes  no  objection  to  the  title  shown  by  the  vendor,  and 
takes  possession  but  refuses  to  complete  the  contract  afterwards  on 
the  sole  ground  that  the  vendor  failed  to  tender  a  conveyance  of 
the  premises  in  due  time,  he  will  be  deemed  to  have  waived  ob- 
jections to  the  title.5 

§  82.  LACHES  OF  PURCHASER.  The  right  to  rescind  may  also 
be  lost  by  lapse  of  time,  even  though  the  time  elapsed  be  short  of 
the  Statute  of  Limitations.6  Especially  does,  this  rule  apply  when 
the  conditions  of  the  parties  have  so  changed  that  the  vendor  can- 
not be  put  in  statu  quo.1  The  purchaser  must  exercise  his  right  to 
rescind  within  a  reasonable  time ;  there  is  no  precise  rule  by  which 
to  determine  what  will  constitute  a  reasonable  time,  each  case  being 
left  to  the  sound  discretion  of  the  court,  having  in  view  the  nature 

'Canton  Co.  v.  Balto.  &  Ohio  R.  Co.,  (Md.)  29  Atl.  Rep.  821.  Where  the 
purchaser  sold  certain  fixtures  on  the  premises  to  the  vendor's  husband,  but 
when  the  fixtures  were  being  taken  down  suggested  that  their  removal  be  de- 
ferred until  the  examination  of  the  title  should  be  completed  and  found  satis- 
factory, it  was  held  that  the  acts  of  the  purchaser  in  the  premises  did  not 
constitute  a  waiver  of  the  right  to  object  to  the  title.  Kouiitze  v.  Hellmuth, 
67  Hun  (N.  Y.),  343;  22  N.  Y.  Supp.  204. 

•  Whitney  v.  Allaire,  1  Comst.   (N.  Y.)  305. 

•Hart  v.  Handlin,  43  Mo.  171.     Dunn  v.  Mills,  (Kans.)  79  Pac.  146,  502. 

41  Sugd.  Vend.  (8th  Am.  ed.)  517  (343).  Dowson  v.  Solomon,  1  Drew.  A 
8m.  1.  Burroughs  v.  Oakley,  3  Swan,  159. 

•Hun  v.  Bourdon,  68  N.  Y.  Supp.  112;  57  App.  Div.  351. 

*1  Sugd.  Vend.  253.  Medlicot  v.  O'Donel,  1  Bal.  &  Beat.  156;  Morse  v. 
Royal,  12  Ves.  374.  Corbett  v.  Shulte,  119  Mich.  249;  77  N.  W.  947.  Lanitz 
T.  King,  93  Mo.  513;  6  S.  W.  Rep.  263,  where  the  plaintiff  delayed  twenty 
months  in  tendering  performance  and  demanding  a  deed.  Colemnn  v.  Bank, 
115  Ala.  307;  22  So.  84;  seven  years. 

THunt  v.  Silk,  5  East,  449.  Caswell  v.  Black  River  Mfg.  Co.,  14  Johns.  (N. 
Y.)  453.  Smith  v.  Detroit  Min.  Co.,  17  S.  Dak.  413;  97  N.  W.  17. 


192 


MARKETABLE  TITLE  TO  HEAL  ESTATE. 


of  the  property  affected,  changes  in  its  character  and  value,  and 
the  rights  of  persons  interested.1  Time  will  begin  to  run  from  the 
period  when  the  right  to  relief  was,  or,  with  reasonable  diligence, 
might  have  been  discovered.*  The  purchaser  is  not  chargeable  with 
laches  where  both  parties  knew  the  title  to  be  defective,  and  that 
it  would  take  considerable  time  to  remove  the  defect.8  Kor  where 
the  delay  is  caused  by  the  vendor's  promises  to  make  the  title  good.4 
But  nothing  can  be  clearer  than  the  equity  which  compels  him 
to  complete  the  contract  in  a  case  in  which,  with  knowledge  of  the 
objection  to  the  title,  he  continues  in  the  uninterrupted  possession 
and  enjoyment  of  the  premises,  without  having  paid  any  part  of 

1 1  Sugd.  Vend.  ( 8th  Am.  ed. )  389,  n.,  where  a  large  number  of  decisions  illus- 
trating the  doctrines  of  equity  in  relation  to  the  enforcement  of  stale  demands 
and  laches  in  the  assertion  of  rights  are  collected,  but  many  of  which  have  n» 
bearing  upon  the  subject  of  rescission  for  defect  of  title  other  than  by  way  of 
analogy.  It  would  seem  that  the  rules  respecting  waiver  of  objections  to  title 
presumed  from  laches  apply  only  in  cases  where  the  purchaser  had  possession ; 
otherwise,  it  would  appear  that  there  is  as  much  reason  to  charge  the  vendor 
with  laches  in  the  enforcement  of  his  rights  as  to  fix  that  responsibility  upon  the 
purchaser.  In  Roach  v.  Rutherford,  4  Desaus.  (S.  C.)  126;  6  Am.  Dec.  606, 
long  possession  by  the  purchaser  and  a  confession  of  judgment  for  the  purchase 
money  were  held  a  waiver  of  the  right  to  rescind.  In  Guttschlick  v.  Bank  of  the 
Metropolis,  5  Cr.  (C.  G.  U.  S.)  435,  the  purchaser  having  rejected  an  insuffi- 
ciently executed  deed,  judgment  was  given  in  his  favor  for  restitution  of  the 
purchase  money,  though  he  had  been  in  possession  seven  or  eight  years.  N» 
question  of  waiver  of  the  right  to  rescind  appears  to  have  been  raised.  IB 
the  following  cases  a  waiver  of  that  right  was  presumed  from  long-continued 
possession  and  laches  on  the  part  of  the  purchaser:  Adams  v.  Heathcote,  !• 
Jur.  301.  Tompkins  v.  Hyatt,  28  N.  Y.  347 ;  Ballard  v.  Walker,  3  Johns.  Cas. 
(N.  Y.)  60;  Watt  v.  Rogers,  2  Abb.  Pr.  (N.  Y.)  261;  Taylor  v.  Fleet,  1  Barb. 
(N.  Y.)  471.  Bell  v.  Vance,  6  Litt.  (Ky.)  108;  Hart  v.  Bleight,  3  T.  B.  Moa. 
(Ky.)  273;  Lacey  v.  McMillan,  9  B.  Mon.  (Ky.)  523.  So.  Pac.  R.  Co.  T. 
Choate,  132  Cal.  278;  64  Pac,  1;  Latimer  T.  Capay  Valley  L.  Co.,  137  Cai. 
286;  70  Pac.  82.  Vendees  who  have  been  in  possession  more  than  thirty 
years,  making  no  effort  to  perfect  their  title  or  to  rescind  the  contract,  will, 
if  reasonably  secure  in  fheir  title,  be  compelled  to  take  it  and  pay  the  pur- 
chase money.  Edwards  v.  Van  Bibber,  1  Leigh  (Va.),  183.  As  the  vendor  cam- 
not  perfect  his  title  where  time  is  material,  so  neither  can  the  purchaser, 
buying  with  knowledge  that  the  title  is  defective,  withhold  the  purchase 
money  for  an  unreasonable  time  and  then  demand  specific  performance,  the 
property  having  in  the  meanwhile  greatly  increased  in  value.  Taylor  T. 
Williams,  45  Mo.  80.  In  Taylor  v.  Williams,  (Colo.)  31  Pac.  Rep.  504,  it 
was  held  that  a  delay  of  a  month  by  the  purchaser  in  electing  to  rescind  the 
contract  on  the  ground  of  defects  of  title  shown  by  the  abstract  did  not  de- 
prive him  of  the  right  to  recover  back  bis  deposit  and  expenses. 

*  1  Sugd.  Vend.  254. 

•Vail  v.  Nelson,  4  Rand.  (Va.)   478. 

'Sniffer  v.  Diet*,  53  How.  Pr.   (N.  Y.)   372. 


WAIVEB  OF  OBJECTIONS  TO  TITLE.  193 

the  purchase  money,1  and  without  offering  to  restore  the  premises 
to  the  vendor.2 

§  82-a.  Failure  to  object  on  "  law  day."  It  has  been  held 
that  a  purchaser  who  makes  specific  objections  to  the  title  on  the 
u  law  day,"  that  is,  the  day  fixed  for  the  performance  of  the  con- 
tract, cannot  subsequently  raise  a  new  objection,  even  if  it  is  valid, 
where  it  is  one  which  might  have  been  removed  by  the  vendor. 
He  must  proceed  with  the  contract  and  rely  for  his  protection 
upon  the  covenants  for  title  which  he  is  to  receive.3 

§  83.  WAIVER  BY  CONTINUING  NEGOTIATIONS  WITH  THE 
VENDOR.  If  the  purchaser  proceeds  with  his  negotiations  after  he 
lias  been  informed  of  defects  in  the  title  and  knows  that  a  good 
title  cannot  be  made  until  those  defects  are  cured,  he  will  be  held 
to  his  bargain,4  notwithstanding  the  expiration  of  the  time  ap- 
pointed for  the  completion  of  the  contract,  and  though  it  will  re- 
quire a  considerable  further  time  in  which  to  perfect  the  title.6 
But  this  rule  does  not  apply  if  he  continues  in  his  subsequent 
negotiations  to  insist  upon  the  objections  to  the  title.6  As  has  been 

'Kennedy  v.  Woolfolk,  3  Hayw.    (Tenn.)    195. 

3  So.  Pac.  R.  Co.  v.  Choate,  132  Cal.  278;  64  Pac.  292. 

3  Higgins  v.  Eagleton,  155  N.  Y.  466,  50  N.  E.  287,  citing  Benson  v.  Crom- 
•vvell,  6  Abb.  Pr.  Cases,  83,  85. 

4  Griggs  v.  Woodruff,  14  Ala.  9.    Rader  v.  Neale,  13  W.  Va.  373.    Grigg  v. 
Landis,  6  C.  E.  Gr.    (N.  J.  Eq.)    494.     Vail  v.  Nelson,  4  Rand.    (Va.)    478. 
Home  v.  Rogers,  110  Ga.  362;  35  8.  E.  715.     In  Flint  v.  Woodin,  9  Hare,  618, 
it  was  said  by  Sir  J.  WIGRAM,  V.  C. :  "A  purchaser  who  finds  there  is  an  ob- 
jection, if  he  intends  to  rely  upon  it,  must  take  his  stand  upon  it  at  once; 
he  cannot  go  on  treating  as  if  he  had  waived  the  objection  and  then  turn 
round  afterwards  and  attempt  to  avail  himself  of  it."     See,  also,  McMurray 
v.  Spicer,  L.  R.,  5  Eq.  527.    A  purchaser  at  an  auction  sale  not  informed  of  an 
outstanding  interest  in  infant  heirs  may  abandon  his  purchase  and  refuse  to 
proceed;  but,  if  he  go  on  with  the  purchase,  content  to  take  such  conveyance 
as  can  then  be  made  and  look  to  chancery  for  title  to  the  infants'  interests, 
he  thereby  waives  his  right  to  rescind.     Goddin  v.  Vaughn,  14  Grat.   (Va.) 
102.    The  offer  to  rescind  should  be  made  as  soon  as  the  defect  is  discovered. 
Nowell  v.  Turner,  9  Port.  (Ala.)  420.    An  offer  made  by  the  purchaser,  after 
examining  the  title,  to  take  the  land  if  he  might  pay  for  it  in  notes  of  third 
persons,  which  offer  the  vendor  refused,  is  no  waiver  of  the  right  to  reject  the 
title  if  bad.    Mead  v.  Fox,  6  Gush.  (Mass.)   199. 

B 1  Sugd.  Vend.  265.  Seton  v.  Slade,  7  Ves.  265 ;  Pincke  v.  Curtiss,  4  Bro. 
C.  C.  329;  Webb  v.  Hughes,  L.  R.,  10  Eq.  281.  Riggs  v.  Pursell,  66  N.  Y.  193, 
198.  Vail  v.  Nelson,  4  Rand.  (Va.)  478;  Goddin  v.  Vaughn,  14  Grat.  (Va.) 
125.  Owen  v.  Pomona  L.  &  W.  Co.,  131  Cal.  530;  63  Pac.  850;  Hawes  v. 
Swanzey,  123  Iowa,  51 ;  98  N.  W.  586.  Rader  v.  Neal,  13  W.  Va.  373,  where 
the  vendor  contracted  to  convey  when  he  should  have  procured  title  from  a 
designated  person. 

•Knatchbull  v.  Grueber,  1  Madd.  170. 
13 


194  MARKET  TITLE   TO  REAL  ESTATE. 

tersely  said:  "A  treaty  cannot  waive  that  about  which  the  pur- 
chaser treats."1  Payment  of  any  part  of  the  purchase  money, 
after  notice  of  a  defect  in  the  title,  will,  as  a  general  rule,  be 
treated  as  a  waiver  of  the  right  to  rescind.2 

§  84.  WAIVEB  IN  CASES  OF  FRAUD.  The  rule  that  the  pur- 
chaser must  promptly  inform  the  vendor  of  his  intention  to  rescind 
the  contract  on  discovery  of  a  defect  in  the  title,  especially  applies 
in  cases  where  the  vendor  was  guilty  of  fraudulent  representations 
in  respect  to  the  title.3  If  the  purchaser  continues  to  deal  with  the 
property,4  or  pays  part  of  the  purchase  money,5  or  accepts  a  convey- 
ance6 after  knowledge  of  the  fraud,  he  waives  his  right  to  rescind, 

'Id.     1  Sugd.  Vend.   (8th  Am.  ed.)   347. 

'Caswell  v.  Black  River  Mfg.  Co.,  14  Johns.  (N.  Y.)  453.  Ayres  v.  Mitchell, 
3  Sm.  &  M.  (Miss.)  683.  Webb  v.  Stephenson,  (Wash.)  39  Pac.  Rep.  952. 

3  Alexander  v.  Utley,  7  Ired.  Eq.(N.  C.)  242;  McDowell  v.  McKesson,  6  Ired. 
Eq.  (N.  C. )  278.  Magennis  v.  Fallen,  2  Mol.  591.  Flight  v.  Booth,  1  Bing.  N.  C. 
370.  Houston  v.  Henley,  2  Del.  Ch.  247,  where  the  purchaser  remained  in  pos- 
session four  years  after  discovering  the  fraud.  Colyer  v.  Thompson,  2  T.  B. 
Mon.  (Ky.)  16.  Patten  v.  Stewart,  24  Ind.  332.  Negley  v.  Lindsay,  67  Pa.  St. 
226;  5  Am.  Rep.  427.  Cunningham  v.  Fithian,  2  Gilm.  (111.)  650.  Laurence  v. 
Dale,  3  Johns.  Ch.  (N.  Y.)  23;  Masson  v.  Bovet,  1  Den.  (X.  Y.)  69;  43  Am.  Dec. 
651.  In  Booth  v.  Ryan,  31  Wis.  45,  the  purchaser,  four  months  after  discovery 
of  the  fraud,  paid  a  part  of  the  purchase  money,  and  seven  months  later  paid 
another  part  of  the  purchase  money,  without  objecting  to  the  fraud  in  respect  to 
the  title,  and  did  not  ask  for  a  rescission  of  the  contract  until  a  suit  had  been 
commenced  to  foreclose  the  purchase  money  mortgage  eighteen  months  after  the 
fraud  had  been  discovered.  It  was  held  that  these  facts  constituted  a  waiver  of 
the  right  to  rescind.  Where  a  purchaser  died  eight  months  after  the  sale 
without  discovering  the  vendor's  fraud  as  to  the  title,  and  his  heir,  within  a 
year  after  discovery  of  the  fraud,  and  four  years  after  the  sale,  filed  a  bill  to 
rescind  the  contract,  it  was  held  that  the  right  to  rescind  had  not  been  lost  or 
waived  by  delay.  Foster  v.  Gressett,  29  Ala.  393.  In  Smith  v.  Babcock,  2 
Woodb.  &  M.  (U.  S.)  246,  a  delay  of  one  year  after  discovery  of  the  fraud 
was  held  no  waiver. 

*1  Sugd.  Vend.  (14th  ed.)  252,  where  it  is  said:  "If  a  purchaser,  instead 
of  repudiating  the  transaction,  deal  with  the  property  as  his  own,  he  is 
bound,  although  he  afterwards  discovers  a  new  circumstance  of  fraud,  for 
that  can  be  considered  only  as  strengthening  the  evidence  of  the  original 
fraud,  and  it  cannot  revive  the  right  of  repudiation  which  has  been  once 
waived."  Campbell  v.  Fleming,  1  Ad.  &  El.  40. 

8 Pollard  v.  Rogers,  4  Call.  (Va.),  239.  Haldane  v.  Sweet,  55  Mich.  196. 
Lockridge  v.  Foster,  4  Scam.  (111.)  569.  Glasscock  v.  Minor,  11  Mo.  655. 
Davis  v.  Evans,  62  Ala.  401 ;  Garrett  v.  Lynch,  45  Ala.  204.  A  sub-purchaser 
who  assumes  the  payment  of  the  original  purchase  money,  and  pays  part  of  it 
after  discovering  objections  to  the  original  vendor's  title,  has  no  remedy 
against  his  immediate  vendor,  though  the  latter  may  have  fraudulently  rep- 
resented the  title  to  be  good.  Blanchard  v.  Stone,  15  Vt.  271. 

•Vernol  v.  Vernol,  63  N.  Y.  45.     In  Patton  v.  England,  15  Ala.  71,  it  was 


WAIVER  OF  OBJECTIONS  TO  TITLE.  195 

and  must  look  to  his  remedy  upon  the  covenants.  The  same  rule 
prevails  where  fraudulent  misrepresentations  have  been  made  in 
respect  to  the  value,  quality  and  situation  of  the  purchased  estate.1 

It  has  been  held  that  declarations  of  the  purchaser  prior  to  the 
tender  of  a  conveyance  by  the  vendor,  that  he  would  not  insist  on 
the  removal  of  an  incumbrance,  which  had  come  to  his  knowledge, 
as  a  condition  upon  which  he  would  accept  the  conveyance,  did 
not  necessarily  amount  to  a  waiver  of  his  right  to  require  that  the 
incumbrance  be  removed,  unless  it  should  appear  that  the  situation 
of  the  vendor  had  been  changed  for  the  worse  by  reason  of 
such  declarations.2 

§  8 5.  WAIVER  BY  PURCHASING  WITH  NOTICE  OF  DEFECT  OR 
GENERAL  RULE.  It  has  been  seen  that  if  the  purchaser  take  pos- 
session with  notice  of  an  incumbrance  or  defect  in  the  title,  he  will, 
as  a  general  rule,  be  deemed  to  have  waived  his  right  to  rescind  the 
contract  for  either  of  those  causes.3  A  fortiori,  if  he  purcluise 
knowing  the  title  to  be  defective  or  the  property  incumbered,  will 
he  be  denied  the  right  to  rescind,4  unless  the  defect  or  incumbrance 

held  that  if  the  purchaser  accepts  a  deed  with  warranty,  lie  cannot  set  up 
fraud  as  a  defense  to  an  action  for  the  purchase  money.  The  inference,  how- 
ever, from  the  facts  stated  in  the  case  is  that  the  purchaser  accepted  the  con- 
veyance after  knowledge  of  the  fraud. 

1  Marshall  v.  Oilman,  47  Minn.  131 ;  49  N.  W.  Rep.  688. 

2  Swan  v.  Drury,  22  Pick.   (Mass.)   485. 
*  Ante,  §  81,  post,  §  246. 

4  2  Sugd.  Vend.  549 ;  1  id.  265 ;  2  Warvelle  Vend.  843.  See  cases  cited  ante, 
"Waiver  by  Taking  Possession,"  §  81  and  post  §  247:  Anderson  v.  Lincoln,  5 
How.  (Miss.)  284;  Wiggins  v.  McGimpsey,  13  Sm.  &  M.  (Miss.)  532.  Mayo 
v.  Purcell,  3  Munf.  (Va.)  243;  Jackson  v.  Ligon,  3  Leigh  (Va.),  161;  Goddin 
v.  Vaughn,  14  Grat.  (Va.)  102.  Mills  v.  Van  Voorhis.  23  Barb.  (N.  Y.)  125; 
Keating  v.  Gunther,  10  N.  Y.  Supp.  734.  Alexander  v.  Kerr,  2  Rawle  (Pa.), 
90;  19  Am.  Dec.  616;  Walker  v.  Quigg,  6  Watts  (Pa.),  90:  31  Am.  Dec.  452. 
Rader  v.  Neal,  13  W.  Va.  373.  Bryan  v.  Osborne.  61  Ga.  51.  Home  v. 
Rogers,  110  Ga.  362;  35  S.  E.  715.  Gooding  v.  Decker,  (Colo.)  32  Pac.  Rep. 
832.  Craddock  v.  Shirley,  3  A.  K.  Marsh.  (Ky.)  288.  Turner  v.  Howell,  21 
Ky.  Law  R.  979;  53  S.  W.  643.  Davenport  v.  Latimer.  53  S.  C.  563;  31  S.  E. 
630.  Marcus  v.  Clark,  185  Mass.  409;  70  N.  E.  433.  Canton  Co.  v.  Balto.  & 
Ohio  R.  Co.,  (Md.)  29  Atl.  Rep.  821.  Wilson  v.  Riddick,  100  Iowa  697;  69 
N.  W.  1039;  Younie  v.  Walrod,  104  Iowa,  475;  73  X.  W.  1021,  where  the  ob- 
jection to  the  title  was  that  no  patent  for  the  land  had  issued.  But  as  it 
appeared  that  the  purchaser  knew  that  fact  when  he  signed  the  contract,  he 
was  required  to  take  the  title.  A  purchaser  at  a  judicial  sale  who  allows  the 
sale  to  be  confirmed  without  objection  for  defects  of  title  of  which  he  had 
knowledge,  must  pay  the  purchase  money,  and  cannot  be  allowed  to  rescind, 
though  he  acquires  no  valid  title.  Young  v.  McClung,  9  Grat.  (Va.)  336.  Where 
an  auctioneer  told  a  prospective  bidder  that  the  purchase  money  would  be 


196  MARKETABLE  TITLE  TO  REAL  ESTATE. 

was  contemplated  by  both  parties  at  the  time  of  the  purchase,  and 
the  vendor's  .agreement  that  they  should  be  cured  or  removed 
remain  unperformed.1  If  the  purchaser  enter  into  the  contract 
with  notice  that  he  cannot  get  a  title  beyond  a  limited  period,  he 
will  be  held  to  have  waived  any  objection  to  completion  of  the  con- 
tract on  that  account.2  And  the  implication  of  law,  in  the  absence 
of  any  express  contract,  that  a  clear  title  was  to  be  conveyed  to 
the  purchaser,  may  be  rebutted  by  showing  that  he  was  aware  of 
the  existence  of  incumbrances  on  the  estate  when  he  purchased.8 
No  waiver  of  a  right  to  object  to  the  title  will  be  presumed  from 
the  fact  that  the  contract  of  sale  contains  no  provision  that  the  con- 
veyance to  be  executed  shall  contain  covenants  for  title.4 

applied  to  the  discharge  of  incumbrances  on  the  property,  but  offered  the  prop- 
erty for  sale  without  an  announcement  to  that  effect,  it  was  held  that  u  jury  was 
warranted  in  finding  that  the  property  was  sold  free  of  incumbrances,  and  that 
such  bidder  purchased  with  that  understanding.  Mayer  v.  Adrian,  77  N.  C.  83. 
In  Louisiana  it  is  held  that  a  purchaser  buying  with  knowledge  of  defect  of  title 
does  not  waive  his  right  to  rescind,  unless  there  was  a  stipulation  in  the  contract 
that  the  vendor  would  not  warrant  the  title,  or  that  the  purchaser  bought  at  his 
peril.  Boyer  v.  Amet,  47  La.  Ann.  721;  Hall  v.  Nevill,  3  La.  Ann.  326. 

'Ante,  "Waiver  by  Taking  Possession,"  §  81.  Jackson  v.  Ligon,  supra, 
was  a  suit  by  the  vendor  to  compel  specific  performance,  and  the  defense  was 
that  the  title  was  bad.  The  vendor  replied  that  the  defendant  purchased  with 
knowledge  of  the  defective  title,  and  the  purchaser  admitting  that  fact,  averred 
that  by  the  contract  the  vendor  was  expressly  bound  to  make  a  good  and  lawful 
right.  Several  opinions  were  rendered  by  the  judges,  all  in  favor  of  the  defend- 
ant on  this  point.  The  contract  was  executory,  but  the  case  was  treated  by  two 
of  the  judges,  BROOKE,  J.,  and  TUCKER,  P.,  as  if  there  had  been  a  conveyance 
with  covenants  against  the  defects  alleged,  the  latter  judge  saying:  "The  case 
of  Stockton  v.  Cook,  3  Munf.  (Va.)  68;  5  Am.  Dec.  504,  very  clearly  shows  the 
understanding  of  this  court  that  a  covenant  against  incumbrances  comprehends 
known  as  well  as  unknown  incumbrances,  and  that  the  vendee  is  not  precluded 
by  his  previous  knowledge  from  claiming  the  fulfillment  of  the  covenant.  Were 
it  otherwise  it  would  be  impossible  for  him  to  provide  for  his  security."  In 
Newbold  v.  Peabody  Heights  Co.,  70  Md.  413;  17  Atl.  Rep.  372,  it  was  held  that 
*  purchase  with  notice  of  an  easement  in  or  restriction  on  the  use  of  the  prem- 
ises would  not  amount  to  a  waiver  if,  by  the  express  terms  of  the  contract,  the 
purchaser  was  entitled  to  an  estate  clear  of  all  restrictions  and  incumbrances. 

9 1  Sugd.  Vend.  346.     Godson  v.  Turner,  15  Beav.  46;  3  Mer.  64. 

3  Newark  Sav.  Inst.  v.  Jones,  37  N.  J.  Eq.  449. 

4  Speakman  v.  Forepaugh,  44  Pa.  St.  363,  the  court  saying  that  the  Pennsyl- 
vania rule  that  it  is  presumed  that  a  purchaser  who,  with  knowledge  of  a  defect 
of  title,  takes  a  conveyance  without  covenants,  intends  to  run  the  risk  of  the 


WAIVER   OF    OBJECTIONS   TO    TITLE.  197 

If  the  purchaser,  with  full  knowledge  of  the  imperfection  of  the 
title,  takes  a  bond  to  protect  himself  against  possible  loss,  i.  e.,  a 
title  bond,  he  of  course  waives  all  right  to  rescission.  His  remedy 
in  such  case  is  by  action  on  the  bond.1 

As  a  general  rule,  the  existence  of  an  open,  notorious  and  visible 
physical  incumbrance  upon  the  estate,  such  as  a  public  highway, 
forms  no  objection  to  the  title,  because  it  is  presumed  that  the  pur- 
chaser was  to  take  subject  to  such  incumbrance.  Neither  does  such 
an  incumbrance  entitle  the  purchaser  to  compensation,  nor  to  an 
abatement  of  the  purchase  money,  nor  to  a  conveyance  with  a  cove- 
nant against  the  incumbrance,  because  it  is  presumed  that  in  fixing 
the  purchase  price  the  existence  of  the  incumbrance  was  taken  into 
consideration.  A  recent  decision  of  the  Supreme  Court  of  Judi- 
cature in  England  thus  states  the  rule :  "  Where  it  is  obvious  that 
there  is  a  right  of  way  enjoyed  by  some  third  person,  or  by  the 
public  in  general,  the  existence  of  such  right  of  way  cannot  give 
rise  to  any  objection  to  the  title,  as,  for  example,  if  the  estate  sold 
is  a  large  one  with  a  public  highway  running  through  it,  then  it  is 
obvious  that  it  was  not  intended  to  sell  the  property  free  from  such 
right  of  way,  but  the  purchaser  would  take  subject  to  the  right  of 
way."  : 

A  species  of  rescission  of  an  executed  contract  for  the  sale  of 
lands  exists  in  those  cases  in  which  the  purchaser,  to  avoid  a  cir- 
cuity  of  actions,  is  permitted  to  detain  the  unpaid  purchase 
money  wherever  he  has  a  present  right  of  action  against  the  vendor 

defect,  has  no  application  "  to  a  mere  executory  contract  of  sale,  a  contract  which 
is  only  preparatory.  Articles  of  agreement  for  the  sale  of  land  are  not  intended 
to  describe  minutely  the  extent  of  the  rights  to  be  assured  to  the  purchaser. 
They  rarely  undertake  to  declare  what  covenants  the  vendor  shall  give.  They 
refer  not  to  the  title  of  the  vendor  when  they  are  executed,  but  to  an  assurance 
afterwards  to  be  made,  it  may  be,  of  a  right  which  the  vendor  is  expected  to 
acquire  after  he  has  engaged  to  convey.  There  is,  therefore,  no  presumption 
that  a  vendee  by  articles  has  agreed  to  waive  any  right  which  the  articles,  stand- 
ing alone,  would  give  him." 

'See  post,  §  248.  Green  v.  Finucane,  5  How.  (Miss.)  542.  Baldridge  v. 
Cook,  27  Tex.  56G.  Home  v.  Rogers,  110  Ga.  362;  35  S.  E.  715.  Russell  v. 
Handy,  22  Ky.  Law  R.  033;  59  S.  W.  320. 

'Ashburn  v.  Sewell,  L.  R.,  3  Cli.  Div.  (1891)  105.  The  snmo  case  decides 
that  the  mere  delineation  of  a  road  on  a  map  of  the  premises  M>ld  will  not 
raine  a  presumption  that  the  purchaser  was  to  take  snhjeet  to  an  easement 
in  the  road  enjoyed  by  third  persons,  there  boinjr  not  h  inn  1o  warn  the  pur- 
chaser that  strangers  had  a  n.«rht  to  use  tlie  road. 


198  MARKETABLE  TITLE  TO  REAL  ESTATE. 

on  the  covenants  in  the  conveyance ;  that  is,  to  set  up  the  defense 
of  failure  of  title  by  way  of  recoupment  in  an  action  for  the  pur- 
chase money.1  It  has  been  held  that  the  purchaser  waives  this  right 
by  purchasing  with  notice  of  the  defect  or  incumbrance.3  There 
would  seem  to  be  no  reasonable  objection  to  such  a  rule  in  cases 
where  the  purchaser  could  apply  the  purchase  money  to  the  removal 
of  the  defect  or  discharge  of  the  incumbrance,  or  those  in  which  the 
objections  to  the  title  were  not  recognized  and  provided  for  in  the 
contract ;  but  if  the  vendor  expressly  agreed  to  remove  the  defect 
or  discharge  the  incumbrance,  it  is  not  easy  to  perceive  why  the  pur- 
chaser should  not  be  allowed  to  detain  the  unpaid  purchase  money, 
as  he  is  permitted  to  do  in  the  case  of  an  unexecuted  contract ; 8 
especially  when  it  is  remembered  that  knowledge  of  the  defect  or 
incumbrance  does  not  affect  the  purchaser's  right  to  recover  on  the 
vendor's  covenants,4  and  that  the  detention  of  the  purchase  money 
is  no  more  than  the  assertion  of  this  right  in  another  form. 

It  has  been  held  that  the  purchaser  will  be  charged  with  notice  of 

'Post,  ch.  26. 

1  Greenleaf  v.  Cook,  2  Wh.  (U.  8.)  13.  Bradford  v.  Potts,  9  Pa.  St.  37.  Find- 
ley  v.  Homer,  9  Neb.  537;  4  N.  W.  Rep.  86.  Busby  v.  Treadwell,  24  Ark.  457; 
Worthington  v.  Curd,  22  Ark.  284,  where  it  was  said  that  knowledge  of  a  defect 
of  title  or  an  incumbrance  was  no  objection  to  recovery  upon  the  covenants  of 
the  deed  in  a  court  of  law,  but  was  ground  for  equity  to  refuse  relief  out  of  the 
unpaid  consideration,  because  it  appears  that  with  such  knowledge  the  purchaser 
chose  to  rely  upon  the  covenants,  and  to  their  legal  effect  he  will  be  remitted. 
See  also  Stone  v.  Buckner,  20  Miss.  73.  Beck  v.  Simmons,  7  Ala,  76.  Twohig 
v.  Brown,  (Tex.)  19  S.  W.  Rep.  768.  See  also  post,  §  271.  In  case  of  a  defect  of 
title  as  to  part  of  the  premises,  the  purchaser  waives  any  right  of  rescission  he 
may  have  by  accepting  a  conveyance  of  the  residue.  Harrison  v.  Deramus,  33 
Ala.  463.  If  a  purchaser  accepts  a  warranty  deed  with  full  knowledge  that  an  eject- 
ment suit  is  pending  for  a  small  portion  of  the  land,  he  will  be  deemed  to  have 
waived  the  right  to  insist  upon  being  put  in  possession  of  the  disputed  portion, 
and  to  have  taken  the  risk  of  gaining  or  losing  the  same,  and,  therefore,  he  can- 
not detain  the  purchase  money  to  the  extent  of  the  value  of  the  land  in  dispute. 
Johnson  v.  Jarrett,  14  W.  Va.  230.  It  is  difficult  to  reconcile  this  decision  with 
the  rule  that  the  purchaser's  knowledge  of  the  existence  of  defects  in  the  title  to 
the  premises  will  not  affect  his  right  to  recover  for  a  breach  of  the  covenants  for 
title,  or  to  detain  the  purchase  money  where  he  is  entitled  to  substantial  damages 
for  such  breach.  The  very  object  of  covenants  for  title  is  to  protect  him  as  much 
against  known  as  unknown  defects  of  title. 

3  Post,  ch.  24. 

4  Stockton  v.  Cook,  3  Munf.  (Va.)  68;  5  Am.  Dec.  504. 


WAIV1IK  OF  OBJECTIONS  TO  TITLE.  199 

the  defective  title  wherever,  with  common  or  ordinary  diligence, 
he  might  have  informed  himself  of  the  objection,1  as  where  it  con- 
sists of  an  incumbrance  of  record2  or  of  a  fact  appearing  from  the 
instruments  under  which  the  title  is  derived  and  which  the  pur- 
chaser is  presumed  to  have  examined.3  The  better  opinion,  how- 
ever, seems  to  be  that  the  doctrine  of  constructive  notice  from  the 
public  records  has  no  application  to  questions  which  arise  between 
vendor  and  purchaser.4 

§  85-a.  Contract  to  convey  free  of  incumbrances.  If  the  writ- 
ten contract  between  the  parties  expressly  provide  that  the  vendor 
shall  convey  the  premises  free  from  incumbrances,  it  is  of  course 
immaterial  that  the  purchaser  had  notice  at  the  time  of  the  con- 
tract that  there  was  an  incumbrance  on  the  property.  He  has  a 
r.ight  to  insist  upon  the  terms  of  his  contract.5  It  is  conceived, 
however,  that  such  an  agreement  should  be  limited  to  those  in- 
cumbrances which  the  vendor  has  the  right  to  remove,  such  as  a 
mortgage,  judgment,  or  other  pecuniary  lien.  If  the  incumbrance 
be  of  a  kind  which  the  vendor  cannot  remove  as  a  matter  of 
right,  such  as  an  easement,  it  is  not  to  be  presumed  that  the  pur- 
chaser, knowing  the  existence  of  the  easement,  intended  the  in- 
sertion of  a  vain  provision  in  the  contract. 

'Steele  v.  Kinkle,  3  Ala.   (N.  S.)   352. 

*Steele  v.  Kinkle,  supra.    Wiggins  v.  McGimpsey,  13  Sin.  &  M.  (Miss.)  532. 

s  In  Wagner  v.  Perry,  47  Hun  (N.  Y.),  516,  it  was  held  that  the  vendor  was 
not  in  fault  in  failing  to  mention  the  fact  that  a  map  had  been  filed  by  the 
public  officials  increasing  the  width  of  a  street  which  bounded  the  property. 

«Post,  eh.  11,  §  104.     Nichol  v.  Nichol,  4  Baxt.   (Tenn.)    145. 

'Weiss  v.  Binnian,  178  111.  241,  52  N.  E.  969.  The  incumbrance  in  this 
case  was  an  easement  —  an  ice-cutting  privilege  previously  conveyed  by  the 
vendor  to  a  third  person.  The  decision  would  be  more  satisfactory  if  the 
incumbrance  had  been  one  of  a  kind  which  the  vendor  could  have  removed,  as 
a  matter  of  right.  It  might  then  have  been  plausibly  contended  that  notice 
of  the  incumbrance  did  not  affect  the  purchaser's  right  to  rescind,  because 
it  was  the  intent  of  the  parties  that  the  incumbrance  should  be  removed. 


CHAPTER  IX. 

TENDER  OF  PERFORMANCE  AND  DEMAND  FOR  DEED. 

GENERAL  RULE.     §  86. 

EXCEPTIONS.      §  87. 

DUTY  OF  THE  VENDOR  TO  TENDER  PERFORMANCE.      §  88. 

PLEADINGS.      §   89. 

§  86.  GENERAL  RULE.  Few  contracts  for  the  sale  of  lands  are 
completed  at  the  time  the  vendor  agrees  to  sell  and  the  purchaser 
agrees  to  buy.  Ordinarily  the  final  execution  of  the  contract  is 
postponed,  at  the  instance  of  the  purchaser,  until  some  day  in  the 
future,  either  that  he  may  have  time  in  which  to  examine  the  title 
or  for  his  convenience  and  accommodation  in  respect  to  the  pay- 
ment of  the  purchase  money.  And  sometimes  performance  is  post- 
poned at  the  instance  of  the  vendor,  either  because  he  is  not  ready 
to  deliver  possession  or  because  he  desires  time  in  which  to  remove 
an  objection  to  the  title.  Under  these  circumstances  the  respective 
covenants  of  the  parties  to  pay  the  purchase  money  and  to  execute 
a  conveyance  are  either  mutual,  concurrent  and  dependent,  that  is, 
to  be  performed  at  one  and  the  same  time;  or,  independent,  in 
which  case  full  performance  by  one  of  the  parties  may  be  exacted 
as  a  condition  precedent  to  performance  by  the  other.  Hence, 
it  follows  that  whenever,  by  the  terms  of  the  contract,  the  payment 
of  the  purchase  money  and  the  conveyance  of  a  good  title,  are 
dependent  and  concurrent  acts,  the  purchaser  must  pay,  or  offer  to 
pay,  the  purchase  money  in  full,  demanding  at  the  same  time  that 
the  vendor  shall  execute  and  deliver  to  him  a  deed  conveying  an 
indefeasible  estate  in  the  premises.1  The  vendor  must  be  given  an 

'Post,  §  253.  Chitty  Cont.  (10th  Am.  ed.)  332;  1  Sugd.  Vend.  (8th  Am. 
ed.)  241;  2  Dart  Vend.  (4th  ed.)  877.  Poole  v.  Hill,  6  M.  &  W.  835;  Baxter 
v.  Lewis,  For.  Ex.  61;  Mattock  v.  Kinglake,  10  Ad.  &  El.  50.  Clemens  r. 
Logging,  1  Ala.  622.  Smith  v.  Henry,  2  Eng.  (Ark.)  207;  44  Am.  Dec.  540; 
Byers  v.  Aikin,  5  Ark.  419;  Drennere  v.  Boyer,  Ark.  497.  Dennis  v.  Stras- 
burger,  89  Cal.  583;  26  Pac.  Rep.  1070.  Ishmael  v.  Parker,  13  111.  324; 
Headley  v.  Shaw,  39  111.  384;  Warren  v.  Richmond,  53  111.  52;  Cronk  v. 
Trumble,  66  111.  428.  Sheets  v.  Andrews,  2  Bl.  (Ind.)  274;  Browning  v. 
Clymer,  1  Ind.  579;  Axtel  v.  Chase,  77  Ind.  74.  Stockton  v.  George,  5  How. 
(Mass.)  L.  172;  Johnston  v.  Beard,  7  Sm.  &  M.  (Miss.)  217;  Stadifer  v. 
Davis,  13  Sm.  &  M.  (Miss.)  48;  Hudson  v.  Watson,  26  Miss.  357;  Hill  r. 
Samuel,  31  Miss.  307.  Hudson  v.  Swift,  20  Johns.  (N.  Y.)  23;  Raudabaugh 


TENDER  OF    PERFORMANCE   AND   DEMAND   FOR   DEED.          201 

opportunity  to  perform  his  contract  before  he  can  be  put  in  de- 
fault, and  an  action  maintained  against  him  for  breach  of  the  con- 
tract, or  to  recover  back  the  purchase  money,  or  to  compel  specific 
performance  of  the  contract.  The  covenants  being  dependent  the 
purchaser  must,  as  a  general  rule,  tender  the  purchase  money, 
whether  he  wishes  to  rescind  the  contract,  or  to  affirm  it  by  action 
to  recover  damages  for  the  breach.1  Generally  these  agreements 
will  be  construed  to  be  dependent,  unless  a  contrary  intention 
appears.  The  question  whether  they  are  or  are  not  dependent  will 
be  determined  by  the  manifest  intention  of  the  parties  and  not 
from  any  particular  word  or  phrase  which  the  contract  may  con- 
tain.2 Parol  evidence  of  the  surrounding  circumstances  will  be  ad- 
mitted to  show  whether,  at  the  time  of  the  execution  of  a  written 
contract  for  the  sale  of  lands,  it  was  the  intention  of  the  parties 
that  the  payment  of  the  purchase  money  on  the  one  part  and  the 
execution  of  a  conveyance  on  the  other  were  to  be  mutual  and  con- 
current acts.3 

v.  Hart,  61  Ohio  St.  73;  55  N.  E.  214.  Guthrie  v.  Thompson,  1  Oreg.  353. 
Baum  v.  Dubois,  43  Pa.  St.  260;  Poulson  v.  Ellis,  60  Pa.  St.  134;  Irvin  v. 
Bleakley,  67  Pa.  St.  24.  Shouse  v.  Doane,  39  Fla.  95;  21  So.  807.  A  pur- 
chaser seeking  to  enjoin  the  collection  of  the  purchase  money  on  the  ground 
of  defect  of  title  and  non-execution  of  a  conveyance,  must  aver  a  tender  of 
the  purchase  money.  Harris  v.  Bolton,  8  Miss.  167.  An  abandonment  of  the 
possession  by  the  purchaser,  without  a  tender  of  the  purchase  money,  is  no 
defense  to  an  action  for  the  purchase  money.  Clemens  v.  Loggins,  1  Ala.  622. 
A  purchaser  rescinding  the  contract  for  defect  of  title  should  tender  payment 
and  demand  a  conveyance,  or  take  some  other  step  showing  an  intention  to 
give  up  his  bargain.  Hunter  v.  Goudy,  1  Ohio,  449.  Where  a  vendor  has 
received  the  purchase  money,  and  no  time  has  been  specified  in  which  the 
deed  is  to  be  made,  there  should  be  a  demand  for  a  deed  and  a  refusal  to 
execute  it,  before  a  suit  to  recover  back  the  purchase  money  can  be  maintained. 
McNamara  v.  Pengilly,  64  Minn.  543;  59  N.  W.  Rep.  1055.  Kime  v.  Kimr. 
41  111.  397.  Walters  v.  Miller,  10  Iowa,  427.  Where  the  deed  is  to  be  made 
by  executors,  no  such  action  can  be  maintained  before  the  executors  hnvc 
qualified.  Hyde  v.  Heller,  10  Wash.  586;  39  Pac.  Rep.  249.  The  failure  of 
the  vendor  to  tender  an  abstract  of  title  provided  for  in  the  contract,  doe-* 
not  excuse  the  vendee,  seeking  specific  performance  of  the  contract,  from  tho 
duty  of  making  a  tender  of  the  purchase  money.  Kelsey  v.  Crowther,  102 
U.  S.  404;  16  -Sup.  Ct.  Rep.  808. 

I  Irvin  v.  Bleakley,  57  Pa.  St.  24,  28. 

I 1  Sugd.  Vend.  (8th  Am.  ed.)  362  (239)  ;  Dart's  Vend.  (Waterman's  Notes) 
449. 

*Sewall  v.  Wilkins,  14  Me.  168.    This  was  an  action  by  the  purchaser  on  a 
title  bond  executed  by  the  vendor.    Testimony  was  admitted,  over  the  objection 


202  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

The  mere  failure  of  the  vendor  to  tender  a  conveyance  and 
demand  payment  of  the  purchase  money  on  the  day  fixed  for  com- 
pleting the  contract  will  not  excuse  a  failure  of  the  purchaser  to 
tender  performance  on  his  part,  unless  it  also  appear  that  the  ven- 
dor had  no  title  and  was  unahle  to  convey.  The  mere  neglect  of 
the  parties  to  perform  the  contract  at  the  appointed  time  cannot, 
without  anything  more,  amount  to  a  rescission.1  If  the  vendor  be 
absent  from  his  residence  or  usual  place  of  abode  when  the  pur- 
chase money  becomes  due,  a  tender  to  some  person  left  in  charge 
there  will  be  sufficient :  a  personal  tender  to  the  vendor  is  not  abso- 
lutely necessary.2  It  has  also  been  held  that  the  expression  "tender 
of  the  purchase  money,"  as  used  in  this  connection,  docs  not  mean 
such  a  tender  as  is  required  to  stop  interest  on  a  debt ;  it  means 
a  readiness,  willingness  and  ability  to  pay,  accompanied  by  notice 
thereof  to  the  other  party.3  So,  also,  tender  of  performance  by  the 
vendor  does  not  mean  in  every  case  the  actual  production  and  ten- 
der of  a  deed ;  if  the  purchaser  himself  does  not  tender  perform- 
ance, it  is  sufficient  for  the  preservation  of  the  rights  of  the  vendor 
that  he  be  able  and  willing  to  execute,  and  offers  to  execute  and 
deliver,  such  a  conveyance  as  the  contract  requires.4  If  the  pur- 
chaser tenders  the  purchase  money  there  is  no  obligation  on  him 
to  keep  the  tender  good,  where  the  vendor  has  failed  to  furnish 
an  abstract  of  title  showing  the  property  free  of  incumbrances, 
required  by  the  contract.5 

§  87.  EXCEPTIONS.  The  rule  Avhich  requires  a  tender  of  the 
purchase  money  and  demand  of  a  deed  on  the  part  of  the  purchaser 
does  not  apply  where  the  vendor's  abstract  shows  a  bad  title,'  or 

of  the  plaintiff,  to  show  that  he  (the  plaintiff,  purchaser)  knew  at  the  time  of 
the  purchase  that  there  was  a  technical  objection  to  the  title  which  could 
probably  not  be  removed  precisely  at  the  time  fixed  for  completing  the  contract. 
"  The  law,"  said  WESTOX,  C.  J.,  "  is  well  settled  that  whether  the  acts  to  be 
performed  by  the  parties  respectively  in  a  covenant  or  agreement  are  to  be 
regarded  as  mutual,  dependent,  concurrent  or  otherwise,  is  to  be  determined 
by  their  intention,  apparent  from  the  written  evidence  of  what  has  been 
agreed,  in  connection  with  the  subject-matter  to  which  it  is  to  be  applied.*' 

1  Townsend  v.  Tufts,  95  Cal.  257 ;  30  Pac.  Kep.  528. 

"Smith  v.  Smith,  25  Wend.  (X.  Y.)  404.  Here  a  tender  to  the  son  of  the 
vendor  at  her  home,  she  being  absent,  was  held  sufficient. 

*  Smith  v.  Lewis,  26  Conn.  110.     Clark  v.  Weis,  87  111.  438:  29  Am.  Rep.  60. 
Booth  v.  Saffold,  46  Ga.  278.    Luchitti  v.  Frost,  (Cal.)  65  Pac.  969.     It  seems 
that  an  averment  of  ability  and  willingness  to  pay  on  tender  of  a  good  title 
is  sufficient.     Smith  v.  Robertson,  11  Ala.  840.     But  see  Englander  v.  Rogers, 
41  Cal.  420,  where  it  was  said  that  the  purchaser  must  produce  and  offer  to 
pay  the  purchase  money. 

4  Wells  v.  Day,  124  Mass.  138.     Teal  v.  Langdale,  78  Ind.  339. 
•Huteliinson  v.  Coonley,  209  111.  437:   70  X.  E.  686. 

•  1  Sugd.  Vend.  (8th  Am.  ed.)  367:  2  id.  212;  Dart  Vend.  (Gould's  Am.  ed.) 


TENDER  OF    PERFORMANCE   AND  DEMAND  FOR   DEED.          203 

where  the  inability  of  the  vendor  to  make  a  good  title  is  so  appar- 
ent that  a  tender  and  demand  would  be  superflous  ;*  as  where  the 
premises  have  been  recovered  from  the  purchaser  by  one  claiming 
under  a  paramount  title,2  or  under  an  incumbrance  created  by  the 
vendor,3  or  where  the  vendor  has  conveyed  away  the  premises  to  a 
third  person  ;4  or  when  he  has  executed  a  declaration  that  he  holds 
the  premises  in  trust  ;5  or  where  the  sale  was  by  agent  and  the  prin- 
cipal has  repudiated  the  contract.6  If  the  contract  provide  that  the 
vendor  shall  show  a  good  title  as  a  condition  precedent  to  the  pay- 
ment of  the  purchase  money,  the  purchaser  need  not  tender  the 
purchase  money  and  demand  a  conveyance  before  maintaining  his 
action,  unless  the  good  title  be  shown.7  An  apparent  contradiction 

504,  510.  Seward  v.  Willcock,  5  East,  198;  Knight  v.  Crockford,  1  Esp.  189; 
Wilinot  v.  Wilkinson,  6  B.  &  C.  506.  Johnson  v.  Collins,  17  Ala.  318;  Garnett 
v.  Yoe,  17  Ala.  74;  Bedell  v.  Smith,  37  Ala.  619.  Lawrence  v.  Taylor,  5  Hill 
(X.  Y.)  107;  Holmes  v.  Holmes,  12  Barb.  (N.  Y.)  137;  Foster  v.  Herkimer 
Mfg.  Co.,  12  Barb.  (N.  Y.)  352;  Spaulding  v.  Fierle,  86  Hun  (X.  Y.)  17; 
Glenn  v.  Rossler,  88  Hun  (N.  Y.)  74;  34  N.  Y.  Supp.  608;  Higgins  v.  Engle- 
ton,  155  N.  Y.  466;  50  N.  E.  287;  Brokaw  v.  Duffy,  165  N.  Y.  391;  59  N.  E. 
196;  Washington  v.  Mining  Co.  (Tex.  Civ.  App.),  67  S.  W.  459. 

'Magee  v.  McMillan,  30  Ala.  421;  Griggs  v.  Woodruff,  14  Ala.  9;  Smith  v. 
Robertson,  23  Ala.  324.  Holmes  v.  Holmes,  12  Barb.  (X.  Y.)  137.  Blann  v. 
Smith,  4  Bl.  (Ind.)  517;  Bowen  v.  Jackson,  8  Bl.  (Ind.)  203;  Carpenter  v. 
Lockhart,  1  Ind.  434.  Edmonds  v.  Cochran,  12  Iowa,  488;  Primm  v.  Wise 
(Iowa),  102  N.  W.  427.  Baynes  v.  Bernhard,  12  Ga.  150. 

'Kerst  v.  Cinder,  1  Pittsb.    (Pa.)    314. 

'Buchanan  v.  Lorman,  3  Gill  (Md.),  51.  Delavan  v.  Duncan,  49  N.  Y.  485. 
So,  where  the  premises  have  been  sold  under  an  incumbrance  which  the  vendor 
engaged  to  remove.  Way  v.  Raymond,  16  Vt.  371. 

4  2  Sugd.  Vend.  (8th  Am.  ed.)  212  (516).  Post,  §  253.  Sir  Anthony  Main's 
Case,  5  Coke's  Rep.  211.  Wilhelm  v.  Fimple,  31  Iowa,  131;  7  Am.  Rep.  117. 
Xesbitt  v.  Miller,  125  Ind.  106 ;  25  X.  E.  Rep.  148.  Smith  v.  Rogers,  42  Hun 
(X.  Y.),  110.  Baum  v.  Dubois,  43  Pa.  St.  260;  Irvin  v.  Bleakley,  67  Pa.  St. 
24.  In  Sons  of  Temp.  v.  Brown,  9  Minn.  157,  it  was  held  that  a  tender  of  the 
purchase  money  might  be  made  to  the  grantee  of  the  vendor,  lie  having  notice 
of  the  purchaser's  rights.  In  California  it  has  been  held  in  several  cases  that 
a  conveyance  by  the  vendor  to  a  thi^d  person  before  the  day  fixed  for  per- 
formance of  the  contract  of  sale,  does  not  entitle  the  purchaser  to  treat  the 
contract  as  abandoned  or  rescinded  before  the  time  of  performance  arrives, 
the  court  saying  that  one  may  sell  land  which  he  does  not  own,  and  yet  be 
able,  when  the  time  of  performance  arrives,  to  convey  a  good  title.  Joyce  v. 
Shafer,  97  Cal.  335;  Shively  v.  Land  Co.,  99  Cal.  259;  33  Pac.  848;  Garberino 
v.  Roberts,  109  Cal.  125:  41  Pac.  857. 

5Seiberling  v.  Lewis,  93  111.  App.  549. 

'Where  the  sale  is  by  an  agent  the  purchaser  is  entitled  to  a  conveyance 
from  the  principal,  and  if  the  principal  refuse  to  convey  the  purchaser  may 
recover  back  the  purchase  money  without  making  a  tender  or  showing  readi- 
ness to  perform  the  contract.     Bell  v.  Kennedy,  100  Pa.  St.  215. 
'1  Sudg.  Vend.   (8th  Am.  ed.)   363   (239). 


204  MARKETABLE  TITLE   TO  KEAL  ESTATE. 

is  involved  in  the  two  propositions  that  the  purchaser  need  not  ten- 
der the  purchase  money  and  demand  a  deed  when  the  vendor's  ab- 
stract shows  a  bad  title,  and  that  the  vendor  is  entitled  to  a  reason- 
able time  in  which  to  remove  incumbrances  and  objections  to  the 
title,  unless  the  first  proposition  is  strictly  limited  to  those  cases  in 
which  the  defect  or  incumbrance  is  incapable  of  removal,  so  that  a 
tender  would  be  utterly  vain  and  nugatory.1  If  the  purchaser 
seeks  to  rescind  the  contract,  or  to  recover  damages  against  the  ven- 
dor for  non-performance,  it  seems  to  be  the  better  opinion  that  the* 
mere  existence  of  an  incumbrance  upon  the  property  will  not  ex- 
cuse him  from  performing  or  tendering  performance  on  his  part, 
if  the  incumbrance  can  be  discharged  out  of  the  purchase  money. 
The  vendor  should  be  given  an  opportunity  to  remove  the  incum- 
brance.2 But  there  are  cases  in  which  the  contrary  view  has  been 
taken.3  If,  however,  in  a  case  in  which  the  estate  is  incumbered, 
the  purchaser  seeks  not  a  rescission,  but  specific  performance  of 
the  contract,4  or  if  he  sues  to  recover  liquidated  damages  for  a 
breach  of  the  contract,  it  seems  that  the  purchaser  loses  no  rights 
by  failing  to  tender  performance.5  i^To  duty  devolves  upon  the 

1  Read  »'.  Walker,  18  Ala.  323,  where  it  was  said  that  if  the  vendor  has  no 
title,  and  cannot  procure  or  cause  one  to  be  made,  the  law  does  not  impose  on 
the  purchaser  the  useless  ceremony  of  preparing  and  tendering  a  deed  before 
he  can  apply  to  a  court  of  equity  for  a  rescission  of  the  contract,  since  he 
would  not  be  bound  under  such  circumstances  to  accept  the  deed,  although  the 
vendor  should  be  willing  to  execute  it. 

Z2  Sugd.  Vend.  (8th  Am.  ed.)  25  (425),  where  it  is  said  that  an  incum- 
brance is  no  objection  to  the  title  if  the  incumbrancer  can  be  compelled  to 
join  in  the  conveyance. 

•Morange  v.  Morris,  34  Barb.  (N.  Y.)  311;  affd.,  32  How.  Pr.  (N.  Y.)  178, 
where  it  was  said  to  be  the  duty  of  the  vendor  to  remove  incumbrances  before 
the  time  fixed  for  completing  the  contract.  The  purchaser  was  permitted  to 
recover  his  deposit  and  the  costs  of  examining  the  title.  Hewison  v.  Hoffman, 
4  N.  Y.  Supp.  621.  It  has  since  been  held  in  this  State  that  the  existence  of 
an  incumbrance  does  not  relieve  the  purchaser  from  the  obligation  to  tender 
the  purchase  money.  Ziehen  v.  Smith,  148  N.  Y.  558 ;  42  N.  E.  1080 ;  Higgins 
v.  Eagleton,  155  N.  Y.  466;  50  N.  E.  287;  Campbell  v.  Pruyne,  39  N.  Y.  Supp. 
558;  6  App.  Div.  554;  Keitel  v.  Zimmerman,  43  N.  Y.  Supp.  676;  19  Misc. 
581;  Marshall  v.  Weninger,  46  N.  Y.  Supp.  670;  20  Misc.  527;  Minor  v. 
Hilton,  44  N.  Y.  Supp.  155;  15  App.  Div.  55;  Daly  v.  Bruen,  84  N.  Y.  Supp. 
971;  88  App.  Div.  263. 

4Kerr  v.  Purdy,  50  Barb.   (N.  Y.)   24. 

•Karker  v.  Haverley,  50  Barb.  (N.  Y.)  79.  In  this  case  the  purchaser  ten- 
dered the  cash  payment,  but  refused  to  execute  a  bond  and  purchase-money 
mortgage  for  the  deferred  payments  xipon  the  ground  that  the  property  was 
incumbered.  The  vendor  then  brought  an  action  to  recover  $600  liquidated 
damages.  Judgment  was  rendered  for  the  defendant. 


TENDER   OF    PERFORMANCE   AND   DEMAND   FOR    DEED.          205 

purchaser  to  tender  the  purchase  money  and  demand  a  conveyance 
in  a  case  in  which  the  acts  and  conduct  of  the  vendor  himself 
show  an  intent  to  rescind  the  contract,1  e.  g.,  where  the  vendor  has 
expressly  notified  the  purchaser  that  he  will  not  execute  a  con- 
veyance,2 or  receive  the  purchase  money.3 

Mere  inability  of  the  vendor  to  make  a  perfect  title  will  not, 
under  all  circumstances,  relieve  the  purchaser  of  the  duty  of  ten- 
dering the  purchase  money  and  demanding  a  conveyance,  as  where 
the  objection  to  the  title  is  an  incumbrance,  lien,  or  charge,  that 
may  be  removed  by  application  of  the  purchase  money.4 

§  88.  DUTY  OP  THE  VENDOR  TO  TENDER  PERFORMANCE. 
If,  under  the  contract,  the  payment  of  the  purchase  money  and  the 
conveyance  of  a  good  title  be  concurrent  and  dependent  acts,  the 

'Mathison  v.  Wilson,  87  111.  51.  Sims  v.  Boaz,  19  Miss.  318.  Drew  v. 
Pedlar,  87  Cal.  443;  25  Pac.  Rep.  749.  Buchanan  v.  Lonnan,  3  Gill  (Md.),51. 
Thus,  where  the  purchaser  had  paid  part  of  the  purchase  money,  and  a  con- 
veyance had  been  executed  in  escrow,  and  afterwards  the  vendor  reclaimed  the 
escrow  from  the  holder  and  denied  the  validity  of  the  contract  with  intent 
to  rescind  the  same,  it  was  held  that  the  purchaser  might  recover  back  the 
purchase  money  paid  without  showing  a  tender  of  that  which  remained  unpaid, 
and  demand  of  the  deed.  Merrill  v.  Merrill,  95  Cal.  334;  30  Pac.  Rep.  542. 

2Traver  v.  Halstead,  23  Wend.  (N.  Y.)  66;  Fbot  v.  West,  1  Den.  (N.  Y.) 
544.  Remy  v.  Olds,  88  Cal.  537.  Comstock  v.  Lager,  78  Mo.  App.  390.  It  has 
been  said  that  if  the  vendor  denies  the  obligation  of  the  contract,  or  places 
himself  in  such  a  position  that  it  appears  that  if  a  tender  of  the  price  were 
made  it  would  be  refused,  the  purchaser  need  make  no  tender  of  payment  or 
demand  of  a  conveyance  in  order  to  preserve  his  rights.  2  Warvelle  Vend. 
774,  citing,  for  the  first  proposition,  Brock  v.  Hidy,  13  Ohio  St.  306,  and  for 
the  second,  Deichman  v.  Deichman,  49  Mo.  107.  Brown  v.  Eaton,  21  Minn.  409. 
See,  also,  Quimby  v.  Lyon,  63  Cal.  394.  So,  no  tender  is  necessary  when  the 
vendor  is  proceeding  on  his  legal  title  against  the  purchaser.  Irvin  v. 
Bleakley,  67  Pa.  St.  24,  28,  dictum. 

•Stone  v.  Sprague,  20  Barb.   (N.  Y.)    509. 

4  In  Hartley  v.  James,  50  N.  Y.  38,  the  court  said :  "  Mere  defect  of  title  in 
the  vendor  and  a  present  inability  to  give  such  title  as  the  contract  calls  for, 
may  not,  in  all  cases,  and  under  all  circumstances,  dispense  with  a  tender  of 
payment  and  a  demand  of  a  conveyance  by  the  vendee  in  order  to  entitle  the 
latter  to  maintain  an  action  for  the  money  already  paid,  or  to  defend  an 
action  for  the  purchase  money,  if  the  payment  becomes  due  before  a  deed  is 
to  be  given  by  the  terms  of  the  contract.  Under  some  circumstances  the  court 
will  not  hold  a  contract  void  by  reason  of  the  inability  of  the  seller  to  make  a 
perfect  title,  but  will  put  the  purchaser  to  a  tender  of  payment  and  a  demand 
of  the  deed,  to  the  end  that  the  seller  may  make  his  title  good."  Citing  Har- 
rington v.  Higgins,  17  W.  R.  376;  Green  v.  Green,  9  Cow.  (N.  Y.)  46;  Greenby 
v.  Cheevers,  9  Johns.  (N.  Y.)  126. 


206  MARKETABLE  TITLE  TO  KEAL  ESTATE. 

purchaser  may  detain  the  purchase  money  until  such  a  conveyance 
is  tendered  to  him,  or  until  the  vendor  shall  show  himself  ready, 
able  and  willing  to  execute  such  a  conveyance  as  the  purchaser  shall 
devise.  The  vendor  must  fully  perform  or  tender  performance  on 
his  part  before  he  can  put  the  purchaser  in  default.1  If  the  con- 
tract provide  that  the  purchase  money  shall  not  be  paid  until  the 
title  has  been  perfected  to  the  satisfaction  of  the  purchaser,  the 
vendor  cannot  put  the  latter  in  default  until  he  is  able  to  execute  a 
deed  conveying  a  perfect  title,  and  has  advised  him  of  the  fact.2 
The  rule  that  the  vendor  must  tender  performance  in  order  to  put 
the  purchaser  in  default  does  not  apply  if  the  latter  has  given  no- 
tice that  he  will  be  unable  to  pay  the  purchase  money,  even  though 
the  abstract  furnished  by  the  vendor  showed  an  objection  to  the 
title.  The  vendor  is  under  no  obligation  to  remove  or  offer  to  re- 
move the  objection  when  the  purchaser  declares  his  own  inability 


1  1  Sugd.  Vend.  (8th  Am.  ed.)  364  (240)  ;  Chitty  Cont.  (10th  Am.  ed.j  330. 
Swan  v.  Drury,  22  Pick.  (Mass.)  485.  Critchett  v.  Cooper,  65  N.  II.  167;  18 
Atl.  Rep.  778.  McWilliams  v.  Long,  32  Barb.  (NT.  Y.)  194;  19  How.  Pr.  547. 
Guthrie  v.  Thompson,  1  Oregon,  353.  Pershing  v.  Canfield,  70  Mo.  140. 
Pursley  v.  Good,  94  Mo.  App.  382.  Overly  v.  Tipton,  68  Ind.  410;  Soule  v. 
Holdridge,  63  Ind.  213;  Melton  v.  Coffelt,  59  Ind.  310;  Parker  v.  McAllister, 
14  Ind.  12.  In  Stingle  v.  Hawkins,  8  Blackf.  (Ind.)  435,  a  vendor  executed 
a  title  bond  conditioned  to  make  a  deed  on  the  payment  of  certain  notes  for 
the  purchase  money,  payable  two  years  after  date,  and  it  was  held  that  a 
suit  on  the  notes  would  not  lie  until  the  vendor  had  offered  to  make  a  deed, 
or  had  shown  a  sufficient  reason  for  not  doing  so.  Citing  Leonard  v.  Bates, 
1  Blackf.  (Ind.)  172;  Owen  v.  Norris,  5  id.  479;  Burrows  v.  Yount,  6  id.  458; 
39  Am.  Doc.  439.  It  has  been  held  in  California  that  the  vendor's  tender  of 
the  deed  of  a  third  party  conveying  a  perfect  title  to  the  purchaser,  is  a 
sufficient  performance  by  the  vendor,  unless  the  purchaser  then  and  there 
specifically  objects  that  the  conveyance  is  not  by  the  vendor  himself.  The 
purchaser  must  make  the  specific  objection  in  order  that  the  vendor  may  have 
an  opportunity  to  procure  a  conveyance  to  himself  from  the  third  party. 
Unless  specifically  made  the  objection  will  be  deemed  to  have  been  waived. 
Royal  v.  Dennison,  109  Cal.  558;  42  Pac.  39. 

In  Southern  Pac.  R.  Co.  v.  Allen,  112  Cal.  455;  44  Pac.  796,  the  contract 
provided  that  the  purchase  money  should  be  paid  on  or  before  a  certain  day, 
and  that  the  vendor,  a  railroad  company,  should  convey  upon  its  receipt  of 
a  patent  for  the  land,  or  refund  the  purchase  money  in  case  it  should  be 
finally  determined  that  no  patent  should  issue.  It  was  held  that  the  argu- 
ments to  pay  the  purchase  money  and  to  execute  a  conveyance  were  not 
mutual,  and  that  the  railroad  company  might  maintain  an  action  for  the 
balance  of  the  purchase  money  without  tendering  a  conveyance,  no  patent 
having  yet  been  issued  to  the  company. 

'Kirkland  v.  Little,  41  Tex.  456. 


TENDER  OF   PERFORMANCE  AND  DEMAND   FOR  DEED.          207 

to  complete  the  contract.1  Nor  where  the  purchaser  declares  that 
he  will  not  accept  a  deed.2  If  the  purchase  money  is  payable  in  in- 
stallments, and  the  purchaser  is  not  to  receive  a  deed  until  the  last 
installment  is  paid,  the  covenants  are  independent,  except  as  to  the 
last  installment,3  and  the  weight  of  authority  seems  to  establish 
the  rule  that  the  purchaser  cannot  decline  to  pay  one  of  the  inter- 
mediate installments  upon  the  ground  that  the  vendor  has  no  title, 
for  non  consiat,  but  that  he  may  acquire  or  perfect  the  title  before 
the  last  installment  becomes  due.4  It  may  be  doubted  whether  this 
rule  would  apply  in  a  case  in  which  it  is  clear  that  the  vendor  can- 
not get  in  an  outstanding  title  because  vested  in  a  person  incompe- 
tent to  convey,  such  as  an  infant  or  lunatic ;  or  in  a  case  in  which 
the  vendor  is  utterly  insolvent.  It  has  been  held  that  the  rule  that 
the  vendor  must  tender  a  conveyance  before  he  can  enforce  the  pay- 
ment of  the  purchase  money,  does  not  apply  to  a  proceeding  in 
equity  to  collect  the  purchase  money.  The  reason  stated  for  thi.-i 
exception  is  that  the  rights  of  the  purchaser  may  be  protected  upon 
final  decree  in  the  cause.6  The  vendor  is  not  bound  to  tender  a 
deed  to  a  sub-purchaser;  it  is  sufficient  if  he  make  tender  to  the 
original  purchaser.  He  cannot  be  required  to  hunt  up  the  as- 
signees of  the  purchaser.6 

Johnston  v.  Johnston,  43  Minn.  5;  44  N.  W.  Rep.  668. 

'Sweitzer  v.  Hummel,  3  Serg.  &  R.  (Pa.)  228;  Hampton  v.  Specknagle,  9 
Serg.  &  R.  (Pa.)  22;  11  Am.  Dec.  704.  Bucklen  v.  Hasterlik,  155  111.  423;  41 
N.  E.  Rep.  561.  Gray  v  Mills,  83  Fed.  824;  Blanton  v.  Ky.  Distilleries  Co., 
120  Fed.  318.  Rowersock  v.  Beers,  82  111.  396. 

'Terry  v.  George,  37  Miss.  539.  Kane  v.  Hood,  13  Pick.  (Mass.)  281,  the 
court  saying:  "Where  the  whole  purchase  money  is  to  be  paid  at  once,  and 
the  deed  is  to  be  then  given,  the  covenants  are  held  to  be  dependent,  because 
it  is  unreasonable  to  presume  that  the  purchaser  intended  to  pay  the  whole 
consideration  without  'laving  the  equivalent  in  a  title  to  the  land  purchased. 
The  same  reason  applies  to  the  last  installment."  McLeod  v.  Snyder,  (Mo.) 
19  S.  W.  Rep.  494.  If  suit  be  delayed  until  all  the  installments  become  due, 
then  the  covenants  to  pay  and  to  make  title  become  dependent.  Johnson  v. 
Wygant,  11  Wend.  (N.  Y.)  48. 

4 Post,  eh.  24,  §  253.  Kane  v.  Hood,  13  Pick.  (Mass.)  281.  Duncan  v. 
Charles,  4  Scam.  (111.)  561;  Runkle  v.  Johnson,  30  111.  328;  Monson  v.  Stevens, 
56  111.  335.  Johnson  v.  Wygant,  11  Wend.  (N.  Y.)  50,  semble;  Harrington 
v.  Higgins,  17  Wend.  (N.  Y.)  376.  Lockwood  v.  Hannibal  &  St.  J.  R.  Co., 
65  Mo.  233;  Smith  v.  Busby,  15  Mo.  387;  57  Am.  Dec.  207.  Oakes  v.  Buckley. 
49  Wis.  592.  Loveridge  v.  Coles,  72  Minn.  57;  74  N.  W.  1109. 

"Rutherford  v.  Haven,  11  Iowa,  587;  Winton  v.  Sherman,  20  Iowa,  205. 
The  same  rule  seems  to  prevail  in  Texas;  Bridge  v.  Young,  9  Tex.  401: 
Lawrence  v.  Simonton,  13  Tex.  220;  Taylor  v.  Johnston,  19  Tex.  351. 

•Heidenberg  v.  Jones,  73  111.  149. 


208  MARKETABLE  TITLE  TO  REAL  ESTATE. 

It  has  been  held  that  it  is  not  necessary  that  the  vendor  shall 
have  the  legal  title  at  the  time  fixed  for  the  performance  of  the 
contract  if  he  can  control  it  and  have  it  conveyed  to  the  purchaser 
on  payment  of  the  purchase  money.1  This  may  be  true  where  the 
sale  was  made  by  an  executor  or  trustee,  or  other  person  acting 
in  a  representative  character,  from  whom  covenants  of  title  cannot 
be  required,  who  tenders  a  deed  executed  by  the  party  whom  he 
represents,  containing  the  proper  covenants.  But  it  can  hardly 
be  contended  that  a  purchaser  from  a  solvent  and  responsible 
party  may  be  compelled  to  accept  a  conveyance  from  a  stranger, 
whose  covenants  for  title  may  be  worthless.2 

In  the  American  States,3  with  but  few  exceptions,4  it  is  the 
duty  of  the  vendor  to  prepare  and  pay  for  the  conveyance  and  have 
it  in  readiness  for  delivery  when  demanded  by  the  purchaser.  In 
the  English  practice,  the  purchaser  prepares  the  conveyance  and 
tenders  it  to  the  vendor  with  the  purchase  money.5  The  American 
rule,  as  generally  expressed,  is  that,  to  put  the  vendor  in  default, 
it  is  necessary  that  the  vendee  should  demand  a  deed,  wait  a 
reasonable  time  for  the  vendor  to  get  it  drawn,  and  then  present 
himself  to  receive  it.6  Of  course,  the  parties  may  contract  that 
the  purchaser  shall  prepare  and  tender  the  deed  for  execution.7 

1  Hazelton  v.  Le  Due,  10  App.  D.  C.  379,  citing  Dresel  v.  Jordan,  104  Mass. 
415  and  Flannigan  v.  Fox,  23  N.  Y.  Supp.  344;  26  Id.  48;  6  Misc.  132.  In 
the  first  two  of  these  cases  the  sale  was  made  by  parties  acting  in  a  repre- 
sentative capacity. 

1  Ante,  §   18;  post,  §  315. 

3  Taylor  v.  Longworth,  14  Pet.  (U.  S.)  175.  Stone  v.  Lord,  80  N.  Y.  60. 
Seeley  v.  Howard,  13  Wis.  336;  Dye  v.  Montague,  10  Wis.  15.  Hill  v.  Hobart, 
16  Me.  164.  Especially  if  the  contract  provides  that  the  vendor  shall  "make 
and  execute  a  deed."  Walling  v.  Kinnaird,  10  Tex.  508;  60  Am.  Dec.  216. 
Fairfax  v.  Lewis,  2  Rand.  (Va.)  20.  Standifer  v.  Davis,  13  Sm.  &  M..  (Miss.) 
48.  Sons  of  Temp.  v.  Brown,  9  Minn.  157.  Baston  v.  Clifford,  68  111.  67 ;  18 
Am.  Rep.  547.  The  purchaser  is  not  obliged  to  prepare  and  tender  a  deed, 
unless  such  an  obligation  can  be  fairly  inferred  from  the  contract.  Buck- 
master  v.  Grundy,  1  Scam.  (111.)  310;  Headley  v.  Shaw,  39  111.  354.  It  is 
only  necessary  that  the  purchaser  shall  allege  that  he  demanded  a  deed;  he 
need  not  allege  that  he  prepared  it  and  presented  it  for  execution.  Standifer 
v.  Davis,  13  Sm.  &  M.  (Miss.)  548. 

4Byers  v.  Aiken,  5  Pike  (Ark.),  419,  497.  But  see  Arledge  v.  Brooks,  22 
Ark.  427.  In  Alabama,  the  English  rule  that  the  purchaser  must  prepare  the 
conveyance  and  tender  it  to  the  vendor  to  be  executed,  has  been  held  to  pre- 
vail. Wade  v.  Killough,  5  Stew.  &  P.  (Ala.)  450;  Chapman  v.  Lee,  55  Ala.  616. 

51   Sugd.  Vend.    (8th  Am.  ed.)    360   (241). 

8  Fuller  v.  Hubbard,  6  Cow.  (N.  Y.)  13;  16  Am.  Dec.  423;  Hackett  v.  Huson, 
3  Wend.  (N.  Y.)  250.  Dye  v.  Montague,  10  Wis.  15.  I 

7Tinney  v.  Ashley,  14  Pick.   (Mass.)   546;  26  Am.  Dec.  620.     As  where  the 


TENDER  OF    PERFORMANCE   AND   DEMAND   FOR   DEED.          209 

Tt  has  been  held  that  a  personal  representative  of  an  assignee  of 
the  vendor,  having  no  connection  with  the  contract  and  no  act  to 
perform  in  respect  to  it,  need  not  tender  a  conveyance  as  a  condi- 
tion precedent  to  the  enforcement  of  a  vendor's  lien  on  the  prop- 
erty.1 But  it  was  held  in  the  same  case  that  the  court  would  not 
direct  a  sale  of  the  land,  unless  the  purchaser  put  himself  in 
Default  by  declining  to  pay  the  purchase  money. 

There  are  cases  which  hold  that  to  put  the  vendor  in  default,  the 
purchaser  must  demand  the  deed,  wait  a  reasonable  time  for  the 
vendor  to  have  it  drawn,  and  again  present  himself  and  make  a 
second  demand ; 2  the  purchaser  being  at  liberty,  however,  to  obvi- 
ate the  necessity  of  a  second  demand,  by  himself  preparing  and 
tendering  the  deed.3  But  the  better  opinion  seems  to  be  that  it  is 
the  duty  of  the  vendor  to  prepare  the  deed  and  have  it  in  readiness 
for  delivery  at  the  time  appointed  for  the  completion  of  the  con- 
tract, and  that  a  demand  for  the  deed  at  that  time  is  sufficient  to 
put  him  in  default.4 

The  tender  must  be  made  at  the  residence  of  the  vendee,  or 
other  place  specially  agreed  upon.  A  tender  made  to  the  vendee's 
attorney  is  insufficient.5 

§  89.  PLEADINGS.  As  a  general  rule,  in  any  case  in  which  the 
purchaser  seeks  to  avail  himself  of  his  right  of  action  against  the 
vendor  for  non-performance  of  the  contract,  when  the  payment  of 
the  purchase  money  on  the  one  part,  and  the  conveyance  of  a  good 
title  on  the  other,  are  dependent  and  concurrent  acts,  he  must,  in 
his  pleadings,  aver  an  actual  performance  or  "tender  of  perform- 
ance on  his  own  part,6  or  aver  a  present  willingness  and  ability 
to  perform,7  or  set  out  facts  which  excuse  his  own  non-performance, 

contract  provides  that  the  vendor  shall  execute  such  conveyances  as  the  pur- 
chaser shall  devise.  Sweitzer  v.  Hummel,  3  Serg.  &  R.  (Pa.)  228. 

'Mhoon  v.  Wilkinson,  47  Miss.  633. 

2  Fuller  v.  Hubbard,  6  Cow.  (N.  Y.)  13;  16  Am.  Dec.  423;  Fuller  v.  Wil- 
liams, 7  Cow.  (N.  Y.)  53;  17  Am.  Dec.  498;  Hackett  v.  Huson,  3  Wend. 
(N.  Y.)  250;  Connelly  v.  Pierce,  7  Wend.  (N.  Y.)  129;  Lutweller  v.  Linnell, 
12  Barb.  (N.  Y.)  512;  Pearsoll  v.  Frazer,  14  Barb.  (N.  Y.)  564.  Johnston 
v.  Beard,  7  Sm.  &  M.  (Miss.)  214;  Hudson  v.  Watson,  26  Miss.  357. 

» Connolly  v.  Pierce,  7  Wend.  (N.  Y.)  129,  132;  Wells  v.  Smith,  2  Edw.  (N.  Y.) 
78;  Foote  v.  West,  1  Den.  (N.  Y.)  544;  Camp  v.  Morse,  5  Den.  (N.  Y.)  164. 

4  Carpenter  v.  Brown,  6  Barb.   (N.  Y.)   147. 

'Darrow  v.  Cornell,  51   N.  Y.  Supp.  828. 

•Clark  v.  Locke,  11  Hump.  (Tenn.)  300.  Grace  v.  Regal,  11  S.  &  R.  (Pa.) 
351. 

7  Smith  v.  Robertson,  11  Ala.  840. 

14 


210  MARKETABLE  TITLE  TO  REAL  ESTATE. 

such  an  absolute  want  of  title  in  the  vendor,  or  that  the  vendor 
had  notified  him  that  he  would  not  or  could  not  complete  the  con- 
tract.1 Wherever  it  is  necessary  that  the  purchaser  shall  have 
tendered  a  conveyance  and  the  purchase  money  as  a  condition 
precedent  to  his  right  to  rescind  the  contract,  or  to  recover  dam- 
ages for  the  breach  thereof,  he  must,  in  any  pleading  in  which  he 
asserts  those  rights,  aver  the  performance  of  such  condition,  or 
the  pleading  will  be  fatally  defective.2 

1  Sons  of  Temp.  v.  Brown,  9  Minn.  157. 

2  Johnston  v.  Beard,  15  Miss.  214.     In  Goodwin  v.  Morey,  111  Ind.  69,  it 
was  held  that  the  vendor,  seeking  to   enforce  the   contract,   must   aver   the 
tender  of  a  sufficient  warranty  deed,  and  must  keep  the  tender  good  by  bring- 
ing the  deed  into  court,  or  by  an  averment  of  readiness  and  willingness  to 
«xecute  a  deed  that  will  vest  a  perfect  title  in  the  purchaser. 


CHAPTER  X. 

MEASURE  OF  DAMAGES  FOR  INABILITY  TO  CONVEY  A  GOOD 

TITLE. 

GENERAL  OBSERVATIONS.     §  90. 

WHERE  THE  VENDOR  ACTS  IN  GOOD  FAITH. 

Flureau  v.  Thornhill.     Hopkins  v.  Lee.    §  91. 

Barter  contracts.     §  92. 

Expenses  of  examining  the  title.    §  93. 

Interest.     §  94. 

Rents  and  profits.     $  95. 

Improvements.     §  96. 

WHERE  THE  VENDOR  ACTS  IN  BAD  FAITH.    §  97. 
WHERE  THE  VENDOR  EXPECTS  TO  OBTAIN  THE  TITLE.    §  98. 
WHERE  THE  VENDOR  REFUSES  TO  PERFECT  THE  TITLE.    §  99. 
LIQUIDATED  DAMAGES.     §  100. 

§  90.  GENERAL  OBSERVATIONS.  Damages  for  breach  of  a  con- 
tract for  the  sale  of  lands  by  the  vendor  are  either  nominal ;  that 
is,  mere  reimbursement  for  such  part  of  the  purchase  money  as  has 
been  paid,  with  interest,  costs,  expenses  of  examining  the  title,  etc.,1 
or  substantial ;  that  is,  reimbursement  in  these  particulars,  and,  in 
addition,  the  difference  between  the  value  of  the  land  at  the  time 
the  contract  was  made  measured  by  the  purchase  price,  and  the  fair 
market  value  of  the  land  at  the  time  of  the  breach ;  in  other  words, 
damages  to  the  purchaser  for  the  loss  of  his  bargain.2  Profits  which 


1  It  is  hoped  that  the  application  of  the  terra  "  nominal  damages  "  to  a  recovery 
of  the  purchase  money,  with  interest,  etc.,  will  lead  to  no  confusion  of  ideas. 
Of  course,  if  the  purchaser  gets  back  only  his  purchase  money,  interest  and 
expenses,  his  recovery  of  damages  is  merely  nominal.  The  following  language  of 
EARL,  J.,  in  Mack  v.  Patchin,  40  N.  Y.  171, clarifies  the  point:  "  Where  the  con- 
tract is  executory,  no  deed  having  been  given,  in  cases  where  no  part  of  the  pur- 
chase money  has  been  paid,  the  vendee  can  recover  only  nominal  damages;  and 
in  cases  where  the  purchase  money  has  been  paid,  ho  can  recover  the  purchase 
money,  interest  and  nominal  damages." 

*  The  purchaser's  measure  of  damages  for  the  loss  of  his  bargain  will  generally 
be  the  difference  between  the  contract  price  and  the  enhanced  value  of  the  land 
when  the  conveyance  should  have  been  made.  2  Dart  V.  &  P.  (4th  Eng.  ed.) 
872;  3  Sedg.  Dam.  (8th  ed.)  §  1018.  Engel  v.  Pitch,  L.  R,  3  Q.  B.  314.  Hop- 


212  MARKETABLE  TITLE  TO  REAL  ESTATE. 

the  purchaser  might  have  made  by  a  resale  of  the  land  under  a 
contract  existing  at  the  time  of  his  purchase  cannot  be  allowed  as 
damages,  unless,  perhaps,  the  vendor  had  notice  of  such  contract  at 
the  time  of  the  sale.1  Nor  can  the  purchaser  include  in  his  esti- 
mate of  damages  profits  anticipated  from  the  prosecution  of  his 
business  on  the  premises  which  should  have  been  conveyed  to  him. 
Such  damages  are  too  remote,  and  are,  besides,  speculative  and 
incapable  of  ascertainment.2 

The  question  whether  the  purchaser  is  entitled  to  nominal  or  sub- 
stantial damages  for  breach  of  the  contract  usually  arises  under  the 
one  or  the  other  of  the  following  circumstances : 

(1)  Where  the  vendor  acts  in  good  faith,  believing  that  his  title  is 
free  from  objection. 

(2)  Where  the  vendor  acts  in  bad  faith,  knowing  that  he  has  no 
title  and  no  prospect  of  acquiring  it. 

(3)  Where,  having  no  title,  the  vendor  expects  to  acquire  it  in 
time  to  complete  the  contract. 

(4)  Where  the  title  is  defective  or  the  estate  incumbered,  and  the 
vendor  has  the  power  to  cure  the  defect  or  remove  the  incumbrance, 
but  neglects  or  refuses  to  do  so. 

It  need  hardly  be  said  that  the  purchaser  may  always  recover  for 
the  loss  of  his  bargain  wherever  the  vendor,  having  a  good  title,  per- 
versely and  wrongfully  refuses  to  convey,3  or  puts  it  out  of  hia 
power  to  perform  the  contract  by  conveying  to  a  stranger  without 

kins  v.  Lee,  6  Wh.  (U.  8.)  109.  Baldwin  v.  Munn,  2  Wend.  (N.  Y.)  399;  20  Am. 
Dec.  627;  Driggs  v.  Dwight,  17  Wend.  (N.  Y.)  71:  31  Am.  Dec.  283;  Fletcher  v. 
Button,  6  Barb.  (N.  Y.)  647;  Brinckerhoff  v.  Phelps,  43  Barb.  (N.  Y.)469;  Pringle 
v.  Spaulding,  53  Barb.  (N.  Y.)  17.  Bitner  v.  Brough,  11  Pa.  St.  127;  Meason  v. 
Kaine,  67  Pa.  St.  132. 

1  Sanderlin  v.  Willis,  94  Ga.  171;  21  S.  E.  Rep.  291. 

*  Greene  v.  Williams,  45  111.  206;  Hiner  v.  Richter,  51  111.  299.  These  were 
both  cases  in  which  the  vendor  refused,  without  sufficient  cause,  to  perform  hia 
contract.  A  fortiori  would  the  rule  apply  where  he  was  prevented  from  per- 
forming the  contract  by  an  unsuspected  defect  of  title. 

»3  Sedg.  Dam.  (8th  ed.)  §  1006.  Baldwin  v.  Munn,  2  Wend.  (N.  Y.)  399;  20 
Am.  Dec.  627;  Brinckerhoff  v.  Phelps,  24  Barb.  (N.  Y.)  100;  S.  C.,  43  Barb.  (N. 
Y.)  469.  Rowland  v.  Dowe,  2  Murph.  (N.  C.)  347;  Lee  v.  Russell,  8  Ired.  Eq. 
526.  But  if  the  contract  were  not  in  writing,  the  purchaser  can  recover  only  what 
he  has  disbursed.  He  can  have  nothing  under  the  contract,  that  being  void. 
Welch  v.  Lawson,  32  Miss.  170.  Rineer  v.  Collins,  156  Pa.  St.  342. 


MEASURE  OF  DAMAGES  FOR  INABILITY  TO  CONVEY  A  GOOD  TITLE.    213 

notice  of  the  purchaser's  rights.1  Were  the  rule  otherwise,  the 
vendor  might  in  every  case  in  which  the  land  had  enhanced  in  value 
before  the  time  fixed  for  making  the  conveyance  sell  to  a  third  per- 
son, return  the  purchase  price  to  the  first  purchaser,  and  put  in  his 
own  pockets  the  difference  between  the  two  values.  But  if  the 
vendor  abandon  the  contract  and  the  purchaser  acquiesces  in  the 
vendor's  attempt  to  rescind,  instead  of  demanding  a  deed  and  stand- 
ing upon  the  contract,  he  can  recover  only  the  purchase  money  and 
interest.2 

§  91.  WHERE  THE  VENDOR  ACTS  IN  GOOD  FAITH.  Flureau 
v.  Thornhill.  Hopkins  v.  Lee.  As  a  general  rule  a  vendor  of 
property,  whether  real  or  personal,  who,  from  whatever  cause, 
fails  to  perform  his  contract,  is  bound  to  place  the  purchaser, 
so  far  as  money  will  do  it,  in  the  position  he  would  have  been 
in  if  the  contract  had  been  performed.  Ordinarily  the  motives 
and  purposes  of  either  party  in  entering  into  the  contract,  or  the 
intent  of  either  to  abandon  or  to  perform  it.  are  irrelevant  to  the 
question  of  what  measure  of  damages  shall  be  awarded  in  case  of  a 
breach.3  An  exception  to  this  rule  has  been  held  to  exist  wherever 
the  vendor  of  real  property  is  unable  to  convey  a  good  title,  if  he 
in  good  faith  entered  into  the  contract  believing  that  his  title  was 
good.4  The  leading  case  upon  this  point  in  England  is  Flureau  v. 

1  3  Sedg.  Dam.  183.  Dustin  v.  Newcomer,  8  Ohio,  49.  Wilson  v.  Spenser,  11 
Leigh  (Va.),  261.  Gerault  v.  Anderson,  2  Bibb  (Ky.),  543.  Sweem  v.  Steele,  5 
Iowa,  352.  Case  v.  Wolcott,  33  Ind.  5.  Phillips  v.  Herndon,  78  Tex.  378. 

9  Fowler  v.  Johnson,  19  Ind.  207. 

"CocKBURN,  L.  C.  J.,  in  Engel  v.  Fitch,  L.  R.,  4  Q.  B.  659.  3  Sedg.  Dam. 
180,  181. 

4  1  Sugd.  Vend:  (8th  Am.  ed.)  537;  Chitty  Cont.  (10th  Am.  ed.)  338;  2  Dart  V 
&  P.  (4th  Eng.  ed.)  873;  2  Sutherland  Dam.  207,  208;  2  Add.  Cont.  (8th  ed.)  401 
(901).  Flureau  v.  Thornhill,  2  W.  Bl.  1078  (1776);  Clare  v.  Maynard,  6  Ad.  &  El. 
519;  Buckley  v.  Dawson,  5  Ir.  C.  L.  R.  211;  Simons  v.  Patchett,  7  E.  &  B.  568. 
Pounsett  v.  Fuller,  17  C.  B.  660;  Lock  v.  Furze,  L.  R.,  1  C.  P.  453,  obiter. 
Walker  v.  Moore,  10  Barn.  &  C.  416;  S.  C.,  21  E.  C.  L.  R.  179,  was  a  strong  case. 
The  vendor  acting  bonajide  delivered  an  abstract  showing  a  good  title,  and  the 
purchaser,  before  verifying  the  abstract,  resold  the  property  in  several  portions 
to  sub-purchasers  at  a  large  profit  (£1.500).  Afterwards,  on  comparing  the 
abstract  with  the  original  deeds,  the  title  was  found  to  be  defective,  in  conse- 
quence of  which  the  sub- purchasers  refused  to  complete  the  contract.  The  pur- 
chaser claimed  damages  for  the  profits  which  he  would  have  realized  from  the 


214  MARKETABLE  TITLE  TO  REAL  ESTATE. 

Thornhill,1  Sir  WILLIAM  BLACKSTONE  being  one  of  the  judges  who 
delivered  opinions  in  that  case.  Some  dissatisfaction  with  this 
decision  has  been  expressed  in  several  English  cases,2  but  it  is  now 
regarded  there  as  settled  law.3  In  the  American  States  it  is  believed 
that  the  weight  of  authority  inclines  to  the  same  rule,  namely,  that 
the  purchaser  can  have  no  damages  for  the  loss  of  his  bargain  if 
the  vendor  sold  in  good  faith,  believing  that  his  title  was  good,4 

resale,  bat  it  was  held  that  he  could  recover  only  the  expenses  incurred  by  him 
in  examining  the  title,  and  nominal  damages  for  the  breach  of  contract. 

1 2  W.  BL  1078.  Flureau  bought  at  auction  a  rent  of  £26,  1,  0.  per  annum  for 
a  term  of  thirty-two  years.  It  was  knocked  down  to  him  at  £270  and  he  paid 
£54  as  a  deposit.  On  looking  into  the  title  it  was  found  to  be  bad,  and  the 
vendor  proposed  to  the  purchaser  to  take  the  title,  such  as  it  was,  or  receive 
back  his  deposit,  with  interest  and  costs;  but  the  purchaser  insisted  on  a  further 
sum  for  damages  in  the  loss  of  so  good  a  bargain.  The  jury,  contrary  to  the 
direction  of  the  judge,  gave  a  verdict 'for  the  deposit  and  £20  damages.  On  a 
motion  for  a  new  trial  DEGREY,  C.  J.,  said :  "  I  think  the  verdict  wrong  in  point 
of  law.  Upon  a  contract  for  a  purchase,  if  the  title  proves  bad,  and  the  vendor 
is  (without  fraud)  incapable  of  making  a  good  one,  I  do  not  think  that  the  pur- 
chaser can  be  entitled  to  any  damages  for  the  fancied  goodness  of  the  bargain 
which  he  supposes  he  lost."  The  new  trial  was  granted. 

*  Engel  v.  Fitch,  10  B.  &  S.  738;  S.  C.f  L.  R,  4  Q.  B.  659. 

»  Sikes  v.  Wild,  1  B.  &  S.  587;  Bain  v.  Fothergill,  L.  R.,  7  H.  L.  158;  Rowe  v. 
School  Board,  36  Ch.  D.  619. 

4  Sutherland  Dam.  217.  Letcher  v.  Woodson,  1  Brock.  (U.  S.)  212,  per  MAR- 
SHALL, C.  J.  Blackwell  v.  Lawrence  County,  2  Bl.  (Ind.)  143;  Sheets  v. 
Andrews,  2  Bl.  (Ind.)  143;  Adamson  v.  Rose,  30  Ind.  380;  Junk  v.  Barnard,  W 
Ind.  137;  Puterbaugh  v.  Puterbaugh,  7  Ind.  App.  280,  obiter;  S.  C.,  34  N.  E. 
Rep.  611.  Sweem  v.  Steele,  5  Iowa,  352;  Foley  v.  Keegan,  4  Iowa,  1;  66  Am. 
Dec.  107.  Cornell  v.  Rodabaugh,  117  Iowa,  287;  90  N.  W.  599.  Lister  v.  Bat- 
son,  6  Kans.  412,  semble.  Rutledge  v.  Lawrence,  1  A.  K.  Marsh,  (Ky.)  397; 
Allen  v.  Anderson.  2  Bibb  (Ky.)  415;  Cox  v.  Strode,  2  Bibb  (Ky.),  275;  5 
Am.  Dec.  603;  Herndon  v.  Venable,  7  Dana  (Ky.)  371;  Combs  v.  Tarlton,  2 
Dana  (Ky.),  464;  Goff  v.  Hawkes,  5  J.  J.  Marsh.  (Ky.)  341.  Baltimore  P. 
B.  &  L.  Soc.  v.  Smith,  54  Md.  187 ;  39  Am.  Rep.  374,  distinguishing  the  early 
cases  of  Connell  v.  McLean,  6  Harr.  t  J.  297,  and  Marshall  v.  Haney,  9  Gill, 
251 ;  59  Am.  Dec.  92.  The  question  was  left  undecided  in  Rawlings  v.  Adams, 
7  Md.  26,  51.  Hammond  v.  Hannin,  21  Mich.  374;  4  Am.  Rep.  490,  per  COOLEY, 
J.  Dunnica  v.  Sharp,  7  Mo.  71.  But,  see  Missouri  cases  cited  contra,  post, 
next  note.  Drake  v.  Barker,  34  X.  J.  L.  358.  Baldwin  v.  Munn,  2  Wend.  (N. 
Y.)  299 ;  20  Am.  Dec.  627,  leading  case ;  Peters  v.  McKeon,  4  Den.  (N.  Y.)  546 ; 
Fletcher  v.  Button,  6  Barb.  (N.  Y.)  646:  Conger  v.  Weaver,  20  N.  Y.  140;  Cock- 
roft  v.  N.  Y.  4  H.  R.  R.  Co.,  69  X.  Y.  204;  EABL,  J.,  in  Mack  v.  Patchin.  40  N. 
Y.  171,  obiter;  1  Am.  Rep.  506.  McLowry,  v.  Croghan.  1  Grant  (Pa.)  307:  Bit- 
ner  v.  Brough.  1 1  Pa.  St.  139 ;  Dumars  v.  Miller,  34  Pa.  St.  319 ;  Hertzog  v.  Hert- 


MEASUBE   OF  DAMAGES   FOR  INABILITY  TO   CONVEY  TITLE.        215 

but .  in  many  of  the  States  the  opposite  rule  prevails,1  and  in 
others  it  is  said  that  the  English  rule  must  be  strictly  limited  to 
cases  in  which  the  vendor  sold  in  entire  ignorance  of  his  inability  to 

zog,  34  Pa.  St.  418,  overruling  Jack  v.  McKie,  9  Barr  (Pa.),  235;  Graham  v. 
Graham,  34  Pa.  St.  475;  McNair  v.  Compton,  35  Pa.  St.  23;  Ewing  v.  Thomp- 
son, 66  Pa.  St.  382;  Burk  v.  Serrill,  80  Pa.  St.  413;  21  Am.  Rep.  105;  Tyson  v. 
Eynck,  141  Pa.  St.  296;  21  Atl.  Rep.  635.  See,  also,  Rineer  v.  Collins,  156  Pa.  St. 
342.  Button  v.  Page,  4  Tex.  142;  Wheeler  v.  Styles,  28  Tex.  240;  Hall  v.  York, 
22  Tex.  643.  Jackson  v.  Turner,  5  Leigh  (Va.),  119,  obiter;  Wilson  v.  Spencer, 
11  Leigh  (Va),  261;  Thompson  v.  Guthrie,  9  Leigh  (Va.),  101;  33  Am.  Dec. 
225;  Click  v.  Green,  77  Va.  827,  obiter;  Abernathy  v.  Phillips,  82  Va.  769;  1  8. 
E.  Rep.  113.  Saulters  v.  Victory,  35  Vt.  351.  In  this  case,  however,  it  was  said 
that  upon  a  breach  of  the  covenant  of  warranty  the  covenantee  would  be  enti- 
tled to  damages  for  the  value  of  the  land  at  the  time  of  the  breach.  Hall  v. 
Delaplaine,  5  Wis.  206;  68  Am.  Dec.  57;  Combs  v.  Scott,  76  Wjs.  662,  670,  obiter. 
In  Cox  v.  Henry,  32  Pa.  St.  18,  the  purchaser  took  a  bond  conditioned  to 
indemnify  himself  for  all  costs,  charges  and  damages  which  he  might  sustain  if 
the  land  should  be  recovered  from  him  under  a  paramount  title,  and  afterwards 
took  a  conveyance  of  the  land  with  warranty.  It  was  held  that  the  bond  was 
not  merged  in  the  conveyance,  and  that  under  the  former  the  purchaser  was 
entitled  to  recover,  in  addition  to  the  purchase  money  and  interest,  court  fees, 
reasonable  fees  of  counsel,  and  his  own  expenses  and  loss  of  time  in  defending  a 
a  suit  by  an  adverse  claimant  to  recover  the  land. 

1  Mr.  Sedgwick  takes  this  view.  3  Sedg.  Dam.  196.  Hopkins  v.  Lee,  6  Wh. 
(U.  S.)  109,  semble.  Whitesides  v.  Jennings,  19  Ala.  784,  dictum.  Kempner  v. 
Cohn,  47  Ark.  519;  58  Am.  Rep.  775.  Wells  v.  Abernathy,  5  Conn.  222.  Bryant 
v.  Hambrick,  9  Ga.  133;  Newsom  v.  Harris,  Dudley  (Ga.),  180;  Gibson  v.  Car- 
reker,  82  Ga.  46;  Ga.  Code,  §  2949;  Irvin  v.  Askew,  74  Ga.  581.  Buckmaster 
v.  Grundy,  1  Scam.  (111.)  310;  McKee  v.  Brandon,  2  Scam.  (111.)  339;  Gale  v. 
Dean,  20  111.  320;  Plummer  v.  Rigdon,  78  111.  222;  20  Am.  Rep.  261.  Lewis  v. 
Lee,  15  Ind.  499.  But  see  the  Indiana  cases,  supra,  following  Flureau  v. 
Thornhill.  Sutton  v.  Page,  13  La.  Ann.  143,  where,  however,  it  was  held  that 
the  purchaser  could  recover  only  for  such  increase  in  value  as  the  parties  may 
have  had  in  contemplation  at  the  time  of  the  sale,  and  not  for  any  enormous 
increase  produced  by  unforeseen  or  fortuitous  circumstances.  Dorincourt  v. 
La  Croix,  29  La  Ann.  286.  Robinson  v.  Heard,  15  Me.  296;  Hill  v.  Hobart,  1« 
Me.  164;  Warren  v.  Wheeler,  21  Me.  484;  Lawrence  v.  Chase,  54  Me.  196;  Russell 
v.  Copeland,  30  Me.  332;  Doherty  v.  Dolan,  65  Me.  87;  20  Am.  Rep.  677.  Trask 
v.  Vinson,  20  Pick.  (Mass.)  110,  obiter.  The  rule  could  scarcely  be  otherwise  in 
Massachusetts,  for  in  that  State  it  is  settled  that  the  measure  of  damages  for  a 
breach  of  the  covenant  of  warranty  is  the  value  of  the  land  at  the  time  of  the 
breach.  So,  also,  in  Maine.  Post,  §  165.  Loomis  v.  Wadhams,  8  Gray  (Mass.), 
557;  Brigham  v.  Evans,  113  Mass.  538.  Skaaraas  v.  Finnegan,  31  Minn.  48, 
obiter,  the  action  being  against  one  who  had  falsely  assumed  authority  to  sell. 
Kirkpatrick  v.  Downing,  58  Mo.  32;  17  Am.  Rep.  678;  Hartzell  v.  Crumb.  90 


216  MARKETABLE  TITLE  TO  EEAL  ESTATE. 

perform  the  contract.1  The  reasons  for  the  rule  established  in 
Flureau  v.  Thornhill,  and  the  cases  which  follow  that  decision, 
are  principally  and  briefly  these: 

1.  A  perfect  title  depends  for  its  existence  upon  such  an  infinite 
variety  of  circumstances,  and  the  law  of  real  property  is,  in  many 
respects,  so  artificial  and  compiex,  that  few  vendors  can  be  certain 
that  there  is  no  latent  and  unsuspected  defect  in  their  titles,  hence  a 
kind  of  implied  contract  arises  that  the  vendor  shall  only  refund  the 
purchase  money,  interest  and  expenses,  if  a  defect  in  the  title  should 
be  discovered,  and  the  vendor  acting  in  good  faith  be  unable  to 
complete  the  contract.2 

2.  It  frequently  happens  that,  from  unexpected  causes,  the  value 
of  the  lands  sold  greatly  increases  before  the  time  fixed  for  the  con- 
veyance, sometimes  doubling  and  sometimes  quadrupling  the  pur- 
chase price.     In  such  a  case  it  has  been  considered  inequitable  to 
visit  upon  an  innocent  vendor  the  ruinous  consequences  of  the 
increase.     No  prudent  man  would  venture  to  sell  his  property,  if 
by  law  he  might  be  bankrupted  by  his  inability,  from  unforeseen 
causes,  to  make  title  under  such  circumstances.3 

3.  The  rule  prevails  everywhere,  except  in  several  of  the  New 
England  States,  that  upon  a  breach  of  the  covenants  of  seisin  and 
of  warranty,  the  covenantee's  damages  shall  be  measured  by  the 
consideration  money,  interest  and  expenses,  and  not  by  the  value  of 

Mo.  629.  Nichols  v.  Freeman,  11  Ired.  (N.  C.)  99.  Barbour  v.  Nichols,  3  R.  I. 
187.  Cocke  v.  Taylor,  2  Temi.  50;  Perkins  v.  Hadley.  4  Hayw.  (Tenn.)  143r 
Crittenden  v.  Posey,  1  Head  (Tenn.),  320,  obiter;  Hopkins  v.  Yowell,  5  Yerg. 
(Tenn.)  305;  Clarke  v.  Locke,  11  Humph.  (Tenn.)  302;  Shaw  v.  Wilkins,  8 
Humph.  (Tenn.)  647;  49  Am.  Dec.  692.  An  early  Tennessee  case  held  that  the 
purchaser  was  not  entitled  to  damages  for  the  loss  of  his  bargain.  Wilson  v. 
Robertson,  1  Tenn.  464.  Dunghee  v.  Geoghegan,  (Utah)  25  Pac.  Rep.  731. 

1  Pumpelly  v.  Phelps,.40  N.  Y.  59;  100  Am.  Dec.  468. 

8  Sir  WILLIAM  BLACKSTONE  in  Flureau  v.  Thornhill,  2  W.  Bl.  1078;  COCKBURN, 
C.  J.,  in  Sikes  v.  Wild,  1  B.  &  S.  596.  "  When  a  contract  for  the  sale  of  land* 
is  made,  each  party  cannot  but  know  that  the  title  may  prove  defective,  and 
must  be  taken  to  proceed  upon  that  knowledge."  LITTLEDALE,  J.,  in  Walker  Y. 
Moore,  10  Barn.  &  Ores.  422;  S.  C.f  21  E.  C.  L.  181. 

*  SUTHERLAND,  J.,  in  Baldwin  v.  Munn,  2  Wend.  (N.  Y.)  399;  20  Am.  Dec. 
627,  adopting  the  reasoning  of  KENT,  Ch.,  in  Staats  v.  Ten  Eyck,  3  Caines  (N. 
Y.),  115;  2  Am.  Dec.  254,  where  the  contract  had  been  executed  by  a  convey- 
ance, with  covenants  for  title. 


MEASURE   OF  DAMAGES  FOE  INABILITY  TO   CONVEY  TITLE.        217 

the  premises  at  the  time  of  the  eviction  of  the  covenantee.1  It  has 
been  held  that,  in  this  respect,  an  executory  contract  is  not  distin- 
guishable from  one  that  has  been  executed,  and  that  in  either  case 
the  measure  of  damages  is  the  same.  It  would  be  an  anomaly  if 
the  vendor  could  relieve  himself  from  liability  for  the  increased 
value  of  the  premises  by  simply  executing  a  conveyance  to  the  pur- 
chaser with  a  covenant  of  warranty.2  The  fact  that  the  land  has 

1  Post,  §  164. 

•  Peters  v.  McKeon,  4  Den.  (N.  Y.)  546.  Drake  v.  Baker,  34  N.  J.  L.  358,  360. 
Dumars  v.  Miller,  34  Pa.  St.  319.  Allen  v.  Anderson,  2  Bibb  (Ky.),  415.  Black- 
well  v.  Laurence  County,  2  Bl.  (Ind.)  143;  Sheets  v.  Andrews,  2  Bl.  (Ind.)  274. 
Threlkeld  v.  Fitzhugh,  3  Leigh  (Va.),  459;  44  Am.  Dec.  384;  Stout  v.  Jackson, 
2  Rand.  (Va.)  132.  Baker  v.  Corbett,  28  Iowa,  317.  Hammond  v.  Hannin,  21 
Mich.  373,  888;  4  Am.  Rep.  490,  COOLEY,  J.,  saying:  "One  very  strong  reason 
for  limiting  the  recovery  to  the  consideration  money  and  interest  in  cases  free 
from  bad  faith  is,  that  the  measure  of  damages  is  thus  made  to  conform  to  the 
rule  where  the  party  assumes  to  convey  land  which  he  does  not  own,  and  an 
action  is  brought  against  him  on  the  covenants  of  title  contained  in  his  deed. 
This  reason  is  made  specially  prominent  in  many  of  the  cases,  and  it  cannot  be 
denied  that  it  is  an  anomaly,  if  the  vendee  is  restricted  to  the  recovery  of  one 
sum  when  an  ineffectual  deed  is  given,  but  allowed  to  recover  a  larger  compen- 
sation in  case  the  vendor,  when  he  discovers  the  defect  in  his  title,  has  the  man- 
liness to  inform  the  vendee  of  the  fact,  and  to  decline  to  execute  worthless  papers. 
Had  H.  (the  vendor)  executed  and  delivered  a  deed  when  it  was  called  for,  the 
present  controversy  could  not  have  arisen,  and  his  failure  to  do  so,  which  worked 
no  additional  wrong  to  the  vendee,  is  the  only  ground  upon  which  the  plaintiff 
can  claim  to  retain  the  large  damages  which  were  awarded  her  in  the  present 
case.  So  long  as  the  rule  stands  which  thus  limits  the  damages  in  suits  upon 
the  covenants  of  title,  so  long  ought  we,  also,  I  think,  to  adhere  to  the  decisions 
which  restrict  the  recovery,  as  above  stated,  in  actions  upon  contracts  to  con- 
vey." In  Connell  v.  McLean,  6  Harr.  &  J.  (Md.)  297,  301,  there  is  an  attempt  to 
show  that  the  rule  should  be  different  where  the  contract  is  executory.  It  will 
be  found,  on  examination  of  the  American  cases  fixing  the  plaintiff's  measure  of 
damages,  for  a  breach  of  the  covenant  of  warranty,  that  many  of  them  are  rested 
on  the  case  of  Flureau  v.  Thornhill,  2  W.  Bl.  1078,  which,  as  we  have  seen,  was 
an  action  for  the  breach  of  an  executory  contract  to  convey  a  good  title,  and  on 
cases  which  follow  that  decision,  thus  assuming  that  whether  the  contract  be 
executory  or  executed,  the  measure  of  damages,  in  case  of  a  breach,  is  the  same. 

It  is  a  curious  fact  that  in  one  State,  where  the  damages  for  a  breach  of  the 
covenant  of  warranty  are  measured  by  the  value  of  the  premises  at  the  time  of 
the  breach,  damages  for  the  breach  of  an  executory  contract  from  want  of  title 
are  fixed  at  the  consideration  money  and  interest  (Saulters  v.  Victory,  35  Vt.  351), 
while  in  another  State,  where  the  consideration  money  and  interest  is  the  measure 
of  damages  for  the  breach  of  a  covenant  of  warranty,  the  purchaser  is  held 


MARKETABLE  TITLE  TO  BEAL  ESTATE. 

greatly  depreciated  in  value  before  the  time  fixed  for  completing 
the  contract  will  not  affect  the  right  of  the  purchaser  to  recover 
back  the  purchase  money  as  damages.1  The  case  of  Hopkins  v. 
Lee2  has  been  frequently  cited  in  support  of  the  proposition  that  a 
purchaser  of  lands  is  entitled  to  damages  for  the  loss  of  his  bargain, 
without  regard  to  the  ability  or  inability  of  the  vendor  to  make  a 
title.  But  the  facts  in  that  case  clearly  distinguish  it  from  one  in 
which  an  innocent  vendor  sells  in  the  belief  that  his  title  is  good. 
The  vendor  refused  to  convey  on  the  ground  that  the  purchaser  had 
not  discharged  an  incumbrance  on  certain  premises  which  had  been 
taken  by  the  vendor  in  exchange  for  those  which  he  was  to  convey, 
but  the  evidence  showed  that  the  incumbrance  had  been  discharged, 
so  that  the  real  question  in  the  case  was,  what  measure  of  damages 
shall  be  awarded  against  a  vendor  who  refuses  to  convey,  leaving 
untouched  the  question  of  his  bona,  fides  or  innocence  of  intent  at 
the  time  the  contract  was  made,  or  that  of  his  ability  or  inability  to 
perform  the  contract.8 

The  principal  objections  to  the  rule  that  the  purchaser  can  have 
no  damages  for  the  loss  of  his  bargain  where  the  vendor,  acting  in 
good  faith,  is  unable  to  make  title,  are  (1)  that  it  is  a  departure 
from  the  general  rule  that  the  seller  of  property  who  neglects, 
refuses,  or  is  unable  to  perform  his  contract,  must  place  the  pur- 
chaser in  as  good  a  condition  as  if  the  contract  had  been  performed, 
and  that  the  motives  or  purposes  of  the  parties  with  respect  to  the 
performance  of  the  contract  are  irrelevant  to  the  question  of  darn- 
entitled  to  damages  for  the  loss  of  his  bargain  on  failure  of  the  title  where  the 
contract  is  executory.  Council  v.  McLean,  6  Harr.  &  J.  (Md.)  297.  In  either 
case,  a  distinction  is  drawn  between  executed  and  executory  contracts  as  respects 
the  rule  of  damages,  but  with  directly  opposite  results.  Apparently,  the  only 
practical  difference  between  the  two  species  of  contract  with  respect  to  the  rule 
of  damages,  is  that  executory  contracts  have  usually  only  a  short  time  to  run, 
while  a  covenant  of  warranty  is  of  indefinite  duration,  and  the  vendor  might 
fairly  be  presumed  to  take  the  risk  of  an  increase  in  value  during  a  short  period, 
where  he  would  perhaps  be  unwilling  to  assume  the  risk  of  a  great  increase  in 
value  during  a  period  of  twenty  or  thirty  years  or  more.  Pumpelly  v.  Phelps, 
40  N.  Y.  59,  65;  100  Am.  Dec.  468. 

1  Shryer  v.  Morgan,  77  Ind.  479. 

!6Wh.  (U.  S.)109. 

3  See  the  remarks  of  the  court  in  Drake  v.  Baker,  34  N.  J.  L.  362,  and  Baldwin 
v.  Munn,  2  Wend.  (N.  Y.)  399,  407;  20  Am.  Dec.  627. 


MEASURE   OF  DAMAGES   FOR  INABILITY  TO   CONVEY  TITLE.        219 

ages,  and  (2)  that  such  a  rule  tempts  the  seller  to  violate  his  con- 
tract and  obtain,  himself,  the  benefit  of  the  increase  in  value.  With 
respect  to  the  first  objection,  it  must  suffice  to  say  that  contracts  for 
the  sale  of  real  estate  would  seem  distinguishable  from  contracts 
for  the  sale  of  goods  and  merchandise  or  other  personalty,  in  that 
inability  to  perform  the  contract  in  respect  to  these  latter  seldom 
arises  from  want  of  title  in  the  vendor,  but  usually  grows  out  of  his 
want  of  skill,  diligence  or  means  of  performance,  or  out  of  some  other 
default  on  his  part,  so  that  no  ground  is  presented  for  the  implication 
of  a  contract  that  only  the  purchase  price  shall  be  returned  if  the  title 
fails.  The  objection  that  the  rule  denying  the  purchaser  damages 
for  the  loss  of  his  bargain  tempts  the  vendor  to  violate  his  contract 
and  avail  himself  of  the  increase  in  value  of  the  premises,  would 
seem  to  be  without  force  for  two  reasons :  First,  because  the  pur- 
chaser is  not  restricted  to  nominal  damages  where  the  vendor  refuses 
to  perform,  or  disables  himself  from  performing  the  contract,  but 
may  recover  damages  for  the  full  value  of  the  property ; l  and, 
second,  because,  should  the  vendor  ferret  out  a  defect  in  his  title  as 
an  excuse  for  non-performance,  the  purchaser  may  always  elect  to 
take  the  title,  such  as  it  is,  and  compel  specific  performance  by  the 
vendor.2  Against  the  rule  it  has  been  further  urged  that  it  is 
inequitable,  in  that  it  holds  the  purchaser  to  a  bad  bargain  arid 
deprives  him  of  the  benefits  of  a  good  one.  But  this  is  true  only  to 
a  limited  extent,  for  the  vendor,  having  a  good  title,  cannot  escape 
his  obligation  to  perform  the  contract,  no  matter  how  greatly  the 
property  may  have  increased  in  value.  The  purchaser  may  go  into 
a  court  of  equity  and  compel  the  vendor  to  convey. 

§  92.  Barter  contracts.  Upon  the  breach  of  a  contract  to 
exchange  lands  of  equal  value,  the  measure  of  damages  would  be, 
where  the  vendor  acts  in  good  faith,  in  those  jurisdictions  in  which 
the  rule  in  Flureau  v.  Thornhill  is  followed,  the  value  of  the  land 
to  be  given  in  exchange  at  the  time  the  contract  was  made.8  But  in 

'Ante,  §  90. 

1  Post,  §  197. 

*  3  Sedg.  Dam.  (8th  ed.)  §  1020;  2  Sutherland  Dam.  228.  Obviously  there  U 
no  difference  in  principle  between  a  case  in  which  a  vendor  receives  land  and 
one  in  which  he  receives  money  in  consideration  of  the  conveyance  which  he  is 
to  make.  In  Combs  v.  Scott,  76  Wis.  670,  there  is,  however,  a  dictum  that  in 
cases  of  barter  contracts,  the  value  of  the  land  (which  should  have  been  conveyed) 


220  MARKETABLE  TITLE  TO  REAL  ESTATE. 

those  jurisdictions  in  which  the  purchaser  from  an  innocent  vendor 
is  allowed  damages  for  the  loss  of  his  bargain,1  or  wherever  the 
vendor  has  acted  in  bad  faith,2  the  purchaser  will  be  entitled  to  dam- 
ages for  the  present  value  of  the  land  which  should  have  been  con- 
veyed to  him  in  exchange.  The  fact  that  the  consideration  passing 
from  the  purchaser  consists  of  the  conveyance  of  land  in  exchange, 
or  the  performance  of  services,  or  the  delivery  of  a  commodity, 
instead  of  the  payment  of  money,  does  not,  of  course,  affect  the 
rule  of  damages  for  breach  of  contract  in  either  case.  If  the  parties 
agree  to  exchange  one  tract  of  land  f  qr  another,  and  the  tract  which 
the  plaintiff  agreed  to  convey  appears  to  be  less  valuabls  than  that 
which  he  was  to  receive,  the  measure  of  his  damages  will  be  the  dif- 
ference in  value  between  the  two  tracts,  with  the  expenses  of  exam- 
ining the  title.3  It  has  been  held  that  if  the  consideration  of  a  con- 
tract to  convey  land  be  the  performance  of  a  certain  act  by  the 
purchaser,  but  before  such  performance  the  vendor  give  notice  of 
his  inability  to  convey  and  his  intent  to  rescind,  the  purchaser  can- 
not, upon  full  performance  on  his  part  thereafter,  recover  the  value 
of  the  land  as  damages.  He  can  recover  only  whatever  actual  dam- 
ages he  has  sustained.4 

at  the  time  of  the  breach  is  from  necessity  the  measure  of  damages.  Cit- 
ing Brigham  v.  Evans,  113  Mass.  538,  a  case  which,  it  seems,  decides  no  more 
than  that  the  plaintiff  shall  not  lose  the  benefit  of  his  bargain  because  the  prop- 
erty he  was  to  give  in  even  exchange  was,  at  the  time  of  the  contract,  much  less 
in  value  than  that  which  he  was  to  receive.  There  had  been  no  appreciable 
change  in  the  values  of  the  respective  pieces  of  property  at  the  time  of  the 
breach. 

1  Wells  v.  Abernethy,  5  Conn.  222. 

9  Devin  v.  Himer,  29  Iowa,  297.  Bierer  v.  Fretz,  32  Kans.  329.  Greenwood  v. 
Hoyt,  41  Minn.  381. 

'Fagen  v.  Davison,  2  Duer  (N.  Y.),  153.  It  is  to  be  observed  that  in  this  case 
the  difference  in  value  between  the  two  pieces  of  property  existed  at  the  time  of 
the  contract.  No  question  was  raised  as  to  any  increase  in  value  at  the  time  of 
the  breach  of  the  contract. 

4Rohr  v.  Kindt,  3  W.  &  S.  (Pa.)  563;  39  Am.  Dec.  53.  Here  the  consideration 
of  the  contract  of  sale  was  that  the  purchaser  should  withdraw  a  caveat  against 
the  probate  of  a  certain  will  in  which  the  vendor  was  the  principal  devisee.  The 
vendor  refused  to  convey  on  the  ground,  among  others,  that  she  had  only  a  life 
estate,  and  the  court  held  that  the  purchaser  was  not  entitled  to  the  fee  simple  value 
of  the  land  (ten  acres)  as  damages,  but  only  such  damages  as  he  had  actually 
sustained. 


MEASURE   OP  DAMAGES  FOB  INABILITY  TO   CONVEY  TITLE.        221 

§  93.   Expenses  of  examining  the  title.     Other  expenses. 

As  a  general  rule  the  purchaser,  on  failure  of  the  title,  may  recover 
as  damages,  in  addition  to  such  part  of  the  purchase  money  ae  has 
been  paid,  the  expenses  incurred  by  him  in  examining  the  title.1  If 
the  vendor  is  innocently  mistaken  as  to  the  goodness  of  his  title, 
and  the  contract  contains  no  warranty  of  ownership,  express  or 
implied,  it  has  been  held  that  the  purchaser  cannot  recover  such 
expenses.2  But  the  mere  fact  that  the  parties  were  aware,  at  the 
time  of  the  contract,  that  the  vendor  did  not  have  the  title,  will  not 
deprive  the  purchaser  of  the  right  to  recover  the  expenses  of  exam- 
ining the  title,  if  the  parties  believed  that  the  vendor  would  acquire 
title  before  the  time  stipulated  for  the  conveyance.3  Of  course,  if 
the  purchaser  agreed  to  take  the  title,  such  as  it  might  be,  he  could 
not  recover  the  expenses  of  an  examination.  Where  the  purchaser 
resold  the  property  before  he  had  examined  the  title,  the  court 
refused  to  include  in  his  damages,  on  failure  of  the  title,  the  sums 
in  which  he  was  liable  to  his  vendees  for  expenses  incurred  by  them 
in  examining  the  title.4  Nor  can  he  recover  the  costs  of  other  liti- 
gation between  himself  and  the  vendor  growing  out  of  the  contract, 
such  as  an  unsuccessful  suit  by  the  latter  for  specific  performance.5 
By  analogy  to  the  rule  which  prevails  in  an  action  for  breach  of  a 

'Post,  §  243.  1  Sugd.  Vend.  (8th  Am.  ed.)  547;  2  Sutherland  Dam.  22;  3 
Sedg.  Dam.  (8th  ed.)  §  1017.  Canfield  v.  Gilbert,  4  Esp.  221;  Kirkland  v. 
Pounsett,  2  Taunt.  145.  (But  see  Wilder  v.  Fort,  4  Taunt.  334.)  Bigler  v. 
Morgan,  77  N.  Y.  312;  Cockroft  v.  N.  Y.  &  Hud.  R.  R.  Co.,  69  N.  Y.  201.  Lee 
v.  Dean,  3  Whart.  (Pa.)  316,  Bitner  v.  Brough,  11  Pa.  St.  127.  Northridge 
v.  Moore,  118  N.  Y.  422;  23  N.  E.  Rep.  570,  where  BRADLEY,  J.,  delivering  the 
opinion  of  the  court,  said :  "  The  vendee  is  not  required  to  take  anything  less 
than  a  good  marketable  title,  and  the  precautionary  means  of  ascertaining 
about  it  by  examination  before  parting  with  the  purchase  money  and  accept- 
ing a  conveyance,  are  properly  made  available  by  way  of  protection,  and 
unless  an  understanding  in  some  manner  appear  to  the  contrary,  the  examin- 
ation of  the  title  by  the  vendee  and  the  reasonable  expense  of  making  it, 
may  be  regarded  as  in  the  contemplation  of  the  parties,  and  treated  as 
properly  incidental  to  the  contractual  situation,  and,  consequently,  the  amount 
of  such  expense  may,  in  the  event  of  failure  of  the  vendor  to  convey,  be  deemed 
special  damages  resulting  from  the  breach,  and  recoverable  as  such. 

'Day  v.  Nason,  100  N.  Y.  166;  2  N.  E.  Rep.  382. 

•Northridge  v.  Moore,  118  N.  Y.  420;  23  N.  E.  Rep.  570. 

*  Walker  v.  Moore,  10  B.  &  C.  416. 

•Hodges  v.  Litchfield,  1  Bing.  N.  C.  492. 


222  MARKETABLE  TITLE  TO  REAL  ESTATE. 

covenant  of  warranty,  it  would  seem  that  the  purchaser  could 
recover  costs  and  expenses  incurred  by  him  in  defending  the  title 
against  an  adverse  claimant,  provided  the  vendor  had  notice  to 
appear  and  defend  the  suit.1 

§  94.  Interest  as  an  element  of  damages.  In  those  jurisdic- 
tions in  which  Flureau  v.  Thornhill  is  followed,  the  purchaser 
will,  as  a  general  rule,  be  entitled  to  recover,  as  an  element  of  his 
damages  on  failure  of  the  title,  interest  on  such  of  the  purchase 
money  as  he  may  have  paid,2  on  money  kept  idle  by  him  with  which 
to  pay  the  purchase  money,  and  also  on  money  borrowed  by  him  for 
that  purpose.3  It  seems,  however,  that  the  purchaser  cannot  recover 
interest  if  there  is  no  liability  for  rents  and  profits  on  his  part  to  the 
true  owner.4  If  the  purchaser  sell  stocks  or  bonds  to  raise  a  fund 
with  which  to  pay  the  purchase  money,  and  the  title  fails,  he  cannot 
recover  compensation  for  loss  occasioned  by  a  rise  in  value  of  the 
stocks,  since  the  sale  would  have  protected  him  from  loss  if  the 
value  had  depreciated.5  In  Tennessee,  a  State  in  which  the  pur- 
chaser is  allowed  damages  for  the  loss  of  his  bargain,  without  regard 
to  good  faith  on  the  part  of  the  vendor,  it  has  been  held  that  interest, 
as  such,  cannot  be  allowed  on  the  damages  awarded  from  the  time 
of  the  breach,  but  that  the  jury  might,  in  their  discretion,  under  all 
the  circumstances  of  the  case,  allow  interest  by  way  of  enhancing 
the  damages,  and  that  it  was  no  error  in  the  court  to  direct  the  jury 
to  compute  interest  from  the  time  of  the  breach.6 

§  95.  Rents  and  profits.  It  seems  that  rents  and  profits  enjoyed 
by  a  purchaser  in  possession  cannot  be  set  off  against  damages  in  an 
action  by  him  against  the  vendor  for  failing  to  make  a  title.  If  the 
vendor  neither  owned  the  premises  nor  had  a  right  to  occupy  them, 
nor  to  suffer  the  purchaser  to  occupy  them,  he  cannot  have  the 

1  Post,  §§  173,  175.  A  bond  to  indemnify  against  all  claims  and  incumbrances, 
etc.,  and  to  "  pay  all  costs,  charges,  or  expenses  necessary  to  defend  the  premi- 
ses "  against  adverse  claims,  embraces  fees  paid  counsel,  and  other  necessary 
expenses  incurred  in  defending  ejectment  for  the  premises.  Robinson  v.  Brake- 
well,  25  Pa.  St.  424. 

21  Sugd.  Vend.  (8th  Am.  ed.)  360;  2  Sugd.  Vend.  (8th  Am.  ed.)  329:  2 
Sutherland  Dam.  221.  Gates  v.  Parmly,  93  Wis.  294;  66  N.  W.  253.  See, 
generally,  the  cases  cited  throughout  this  chapter. 

31  Sugd.  Vend.   (8th  Am.  ed.)   360. 

4  Post,  next  section,  "  Rents  and  Profits." 

81  Sugd.  Vend.    (7th  Am.  ed.)    302    (258). 

«Sha\v  v.  Wilkins,  8  Humph.   (Tenn.)  646;  49  Am.  Dec.  692. 


MEASURE   OF  DAMAGES  FOR  INABILITY  TO   CONVEY  TITLE.        223 

benefit  of  possession  by  the  purchaser.  The  purchaser  is  liable  to 
the  true  owner  for  the  mesne  profits.1  The  rule  may  be  different 
where  the  purchaser  seeks  to  rescind  the  contract  and  recover  back 
the  purchase  money.  Such  an  action  cannot  be  maintained  except 
'  upon  the  theory  that  the  premises  have  been  restored  to  the  vendor, 
who,  being  in  possession,  would  be  bound  to  answer  to  the  real 
owner  for  the  mesne  profits,  and  who  for  that  reason  is  generally 
allowed  to  set  off  the  rents  and  profits  against  interest  on  the  pur- 
chase money  which  he  is  called  upon  to  restore.2  But  if  the  real 
owner  acquits  the  purchaser  of  all  demand  for  mesne  profits,  it  has 
been  held  that  the  latter  cannot  recover  interest  on  the  considera- 
tion money  awarded  as  damages.8  Arid  as  a  general  rule  the  pur- 
chaser can  only  recover  interest  for  such  time  as  he  himself  is  liable 
to  the  real  owner  for  the  mesne  profits  ; 4  hence,  it  has  been  held 
that  for  such  time  as  the  claims  of  the  real  owner  are  barred  by  the 
Statute  of  Limitations,  the  enjoyment  of  the  rents  and  profits  will  be 
a  set-off  against  the  purchaser's  demand  for  interest  on  the  consid- 
eration money.  If  the  purchaser  in  possession  has  not  been  and 
cannot  be  compelled  to  account  to  the  true  owner  for  the  mesne 
profits,  it  has  been  held  that  he  cannot  recover  interest  on  the  pur- 
chase money  against  the  vendor.5 

1  Fletcher  v.  Button,  6  Barb.  (N.  Y.)  646.     Dunnica  v.  Sharp,  7  Mo.  71. 

*  Post,  ch.  24.  Taylor  v.  Porter,  1  Dana  (Ky.),  585;  25  Am.  Dec.  155.  where  a 
head  note,  which  is  sustained  by  the  opinion,  says:  "  So  long  as  the  parties  abide 
by  the  contract  the  vendee  in  possession  is  not  chargeable  with  rents  nor  entitled 
tc  interest  on  the  purchase  money  he  has  paid;  after  disaffirmance  he  is  charge- 
able with  rents  until  he  surrenders  possession,  and  is  entitled  to  interest  until  his 
money  is  refunded.  If  his  payment  was  partial  only,  there  should  be  an  equi- 
table adjustment  of  rent  and  interest."  In  Combs  v.  Tarlton,  2  Dana  (Ky.),  464, 
it  was  held  that  in  an  action  at  law  by  the  purchaser  to  recover  damages  for  the 
vendor's  failure  to  make  title,  the  pernancy  of  the  rents  and  profits  by  the 
purchaser  in  possession  could  not  go  in  reduction  of  the  damages,  but  that  the 
vendor  might  go  into  equity  and  have  an  account  of  the  rents  and  profits,  and 
have  them  applied  to  the  interest  on  the  purchase  money  awarded  as  damages. 
Herndon  v.  Venable,  7  Dana  (Ky.),  371 ;  Lowry  v.  Cox,  2  Dana  (Ky.),  470. 

*Post,  §  280.     White  v.  Tucker,  52  Miss.  147. 

'Thompson  v.  Guthrie,  9  Leigh   (Va.),  101;  33  Am.  Dec.  225. 

"Post,  §  172.  Cogwell  v.  Lyons,  3  J.  J.  Marsh.  (Ky.)  41,  which,  however, 
was  a  suit  in  equity  for  specific  performance  and  damages. 


224  MARKETABLE  TITLE  TO  REAL  ESTATE. 

§  96.  Improvements.  If  the  title  fail  the  purchaser  cannot 
recover  against  a  vendor  acting  in  good  faith  the  value  of  improve- 
ments placed  by  him  on  the  premises.  If  he  expends  money  in 
improvements  when  he  is  uncertain  about  the  title,  he  does  so  at 
his  own  risk.1  Besides,  in  most  of  the  States  there  are  statutory 
provisions  which  entitle  the  purchaser  to  an  allowance  for  such 
expenditures  in  proceedings  against  him  by  the  true  owner.2  Of 
course  the  purchaser  cannot  recover  for  improvements  made  by 
him  after  discovering  the  vendor's  inability  to  convey,3  unless,  it 
is  apprehended,  he  was  induced  to  lay  out  money  on  the  vendor's 

1  2  Sugd.  Vend.  (8th  Am.  ed.)  515  (748).  But  the  rule  is  otherwise  in  equity. 
Id.  514.  Walton  v.  Meeks,  120  N.  Y.  79;  23  N.  E.  Rep.  1115,  distinguishing 
Gilbert  v.  Petelder,  38  N.  Y.  135,  where  the  contract  obliged  the  purchasers  to 
expend  a  certain  amount  in  improvements  before  they  should  be  entitled  to  a 
deed.  Peters  v.  McKeon,  4  Den.  ( N.  Y. )  546,  550.  Hertzog  v.  Hertzog,  34  Pa. 
St.  418,  420,  obiter.  Worthington  v.  Warrington,  8  C.  B.  134;  65  E.  C.  L.  134, 
where  it  was  said  by  COLEMAN,  J. :  "I  think  it  would  be  extremely  hard  if  it 
were  held  that  the  plaintiff  (purchaser)  was  at  liberty  at  once  to  make  altera- 
tions and  then  to  throw  the  expense  of  them  upon  the  defendant  in  the  event  of 
his  not  being  able  to  make  a  good  title.  Every  one  who  purchases  land  knows 
that  difficulties  may  exist  as  to  the  making  a  title,  which  were  not  anticipated 
at  the  time  of  entering  into  the  contract.  But,  if  the  purchaser  thinks  proper 
to  enter  into  possession  and  to  incur  expenses  in  alterations  before  the  title  is 
ascertained,  he  does  so  at  his  own  risk."  In  Sedgwick  Damages  ( 8th  ed ),  sec- 
tion 1017,  it  is  said :  "  Where  the  plaintiff  was  let  into  possession  under  the  con- 
tract, he  may  recover  the  reasonable  value  of  the  improvements,  less  the  value  of 
the  use  of  the  land  (Bellamy  v.  Ragsdale,  14  B.  Mon.  (Ky.)  293 ;  Sheard  v.  Wei- 
burn,  67  Mich.  387 ) ,  probably  in  all  cases,  but  certainly  when  the  defendant 
knew  ne  had  no  title.  Erickson  v.  Bennett,  39  Minn.  326."  The  case  first  cited 
was  one  in  which  the  vendor  refused  to  convey ;  no  question  of  title  was  raised 
The  second  case  was  one  in  which  the  parties  mutually  agreed  to  rescind  on 
grounds  other  than  failure  of  title.  In  Tyson  v.  Eyrick,  141  Pa.  St.  296;  21 
Atl.  Rep.  635,  the  purchaser  was  under  the  contract  entitled  to  a  lot  fifty  feet 
wide,  but  it  was  discovered,  after  he  had  built  on  the  lot,  that  the  vendor  had  no 
title  to  a  strip  one  foot  in  width.  It  was  held  that  he  could  not  recover  dam- 
ages for  the  misplacement  of  his  building  and  the  expense  of  contracting  his 
walls.  "It  was  his  duty  before  expending  his  money  on  valuable  improvements 
to  ascertain  and  know  his  lines  and  to  locate  his  buildings  accordingly." 

1  It  seems,  also,  that  without  the  aid  of  positive  enactment  the  purchaser  will, 
in  equity,  be  entitled  to  an  allowance  against  the  real  owner  for  improvements 
made  in  good  faith.  2  Story  Eq.  Jur.  1237.  Bright  v.  Boyd,  1  Story  ( C.  C. )  478 ; 
Benedict  v.  Oilman,  4  Paige  (N.  Y.),  58.  Green  v.  Biddle,  8  Wh.  (U.  S.)  1. 
There  can  be  no  doubt  of  his  right  to  the  allowance  if  the  real  owner  stood  by 
and  saw  the  improvements  going  on  without  asserting  his  title.  Southall  V. 
McKeand,  1  Wash.  (Va.)  336.  Green  v.  Biddle,  8  Wh.  (U.  S.)  1,  77,  88. 

'Lindley  v.  Lukin,  1  Bl.  (Ind.)  266. 


MEASURE   OF  DAMAGES   FOR  INABILITY  TO   CONVEY  TITLE.        225 

engagement  to  perfect  the  title.1  If  the  purchaser  has  recovered 
against  the  real  owner  the  value  of  improvements  put  on  the  land 
by  the  vendor  before  the  sale,  the  vendor,  when  sued  for  breach  of 
contract  to  make  title,  must  have  credit  for  the  amount  of  such 
recovery.2 

Where  the  vendor  fraudulently  conceals  or  misrepresents  the 
state  of  his  title,  the  purchaser  may  recover  for  improvements.1 
It  would  seem  that  if  the  purchaser,  instead  of  affirming  the  con- 
tract by  action  for  damages,  seeks  to  rescind,4  which  implies  a 
restoration  of  the  premises  with  the  improvements  thereon  to  the 
vendor,  he  would  in  an  action  to  recover  back  the  purchase  money 
be  entitled  also  to  recover  the  value  of  the  improvements  as  money 
expended  for  the  use  and  benefit  of  the  vendor.  Inasmuch  as  the 
occupant  of  the  premises  would  generally  be  entitled  to  an  allow- 
ance for  improvements  against  the  true  owner,  it  would  be  inequi- 
table to  relieve  him  from  the  purchaser's  claim. 

The  purchaser  will  not  be  allowed  for  repairs  made  after  he  has 
been  informed  of  a  defect  in  the  title,  except  such  as  may  be 
necessary  to  keep  the  premises  in  common  condition.6 

§  96a.  Failure  of  title  to  part.  The  measure  of  damages  for 
failure  of  title  to  part  only  of  the  lands  included  in  the  contract, 
is  such  proportion  of  the  whole  consideration  agreed  to  be  paid, 
as  the  value,  at  the  time  of  the  purchase,  of  the  part  to  which  the 
title  is  found  defective  bears  to  the  value  of  the  whole  quantity 
purchased.6  The  rule  is  the  same  in  an  action  for  breach  of  a 
covenant  of  warranty.7 

§  97.    WHERE  THE   VENDOR   ACTS   IN  BAD  FAITH.       If    the 

vendor  fraudulently  misrepresent  or  conceal  the  state  of  his  title 
the  purchaser  will,  as  a  general  rule,  be  entitled  to  require  the 
vendor  to  place  him  in  as  good  a  position  as  if  the  contract  had 
been  performed ;  in  other  words,  he  may  have  damages  for  the  loss 
of  his  bargain.8  In  England,  however,  it  is  held  that  such  fraud 
cannot  aggravate  the  purchaser's  damages  in  an  action  for  breach 
of  the  contract ;  he  must  resort  to  his  action  for  deceit,  in  which 

1  As  in  Martin  v.  Atkinson,  7  Ga.  228 ;  50  Am.  Dec.  403. 
'McKinney  v.  Watts,  3  A.  K.  Marsh.  (Ky.)  268. 
•Erickson  v.  Burnet,  39  Minn.  326. 

4  Taylor  v.  Porter,  1  Dana   (Ky.),  421;  25  Am.  Dec.  155.    But  see  Wilhelm 
v.  Fimple,  31  Iowa,  137;  7  Am.  Rep.  117. 

5 1  Sugd.  Vend.   (8th  Am.  ed.)   391.    Thompson  v.  Kilcrease,  14  La.  Ann.  340. 

•  Gates  v.  Parmly,  93  Wis.  294 ;  66  N.  W.  253 ;  67  N.  W.  739. 
'Post,  §  170. 

*  1  Sugd.  Vend.  ch.  9,  §  3;  3  Sedg.  Dam.  (8th  ed.)  §  1010.     Krumm  v.  Beach, 

15 


226  MARKETABLE  TITLE  TO  HEAL  ESTATE. 

he  will  recover  damages  for  all  that  he  has  lost  through  the  ven- 
dor's non-performance  of  the  contract.  The  reason  given  for  this 
distinction  is  that  the  good  or  bad  faith  with  which  a  party  enters 
into  a  contract  is  immaterial  to  the  quantum  of  damages  resulting 
from  a  non-performance.1  The  distinction  does  not  appear  to 
have  been  observed  in  America.  It  seems  that  if  the  purchaser 
proceed  in  equity  for  a  rescission  of  the  contract  on  the  ground  of 
fraud,  instead  of  at  law  for  damages,  he  can  have  a  decree  only 
for  the  purchase  money  paid,  with  interest,  and  the  value  of  his 
improvements,  after  deducting  the  mesne  profits  of  the  land  while 
in  his  possession.2  In  Pennsylvania  it  is  held  that  if  the  acts  of 
the  vendor  in  selling  without  title  amount  to  a  fraud,  the  pur- 
chaser will  be  entitled  to  damages  sufficient  to  compensate  him  for 
all  expenses  accruing  from  the  want  of  title,  but  not,  it  seems,  to 
damages  for  the  loss  of  his  bargain.3  In  Texas  the  rule  is  that  the 
purchaser  cannot,  in  a  case  of  fraudulent  representations  as  to  the 
title,  recover  for  the  loss  of  his  bargain  or  the  increased  value  of 
the  land,  unless  such  increase  is  the  result  of  his  labor  and  ex- 
penses, that  is,  unless  he  has  put  improvements  on  the  premises.4 
What  constitutes  fraud  by  the  vendor  in  respect  to  the  title  will 
be  elsewhere  considered  in  this  work.5  It  will  suffice  to  say  here 
that,  as  a  general  rule,  a  vendor  who  enters  into  the  contract 
knowing  that  his  title  is  not  good,  and  fails  to  disclose  that  fact 
to  the  purchaser,  is  guilty  of  fraud.  It  has  been  held,  however, 
that  there  is  no  obligation  upon  the  vendor  to  disclose  defects  of 
title  which  could  be  discovered  upon  such  ordinary  investigation 
as  a  prudent  man  should  make.'  But  inasmuch  as  it  is  settled 

96  N.  Y.  398;  Peters  v.  McKeon,  4  Den.  (N.Y.)  546;  Xorthridge  v.  Moore,  118 
N.  Y.  419 ;  23  X.  E.  Rep.  570.  In  a  case  of  fraud  by  the  vendor  the  measure  of 
damages  :s  full  indemnity  to  the  purchaser.  Cross  v.  Devine,  46  Hun,  (N.  Y.), 
421.  Sweem  v.  Steele,  5  Iowa,  352.  Tracy  v.  Gunn,  29  Kans.  508.  Goff  T. 
Hawks,  5  J.  J.  Marsh.  (Ky.)  342.  Erickson  v.  Bennett,  39  Minn.  326;  Lan- 
coure  v.  Dupre,  (Minn.)  55  N.  W.  Rep.  129. 

'2  Add.  Cont.  (8th  ed.)  410  (901)  ;  3  Sedg.  Dam.  (8th  ed.)  $  1010.  Sikes 
v.  Wild,  1  Best  &  S.  587 ;  Bain  v.  Fothergill,  7  H.  L,.  158. 

*  Bryan  v.  Boothe,  30  Ala.  311. 

'Good  v.  Good,  9  Watts  (Pa.),  567;  Lee  v.  Dean,  3  WTiart.  (Pa.)  316: 
Hertzog  v.  Hertzog,  34  Pa.  St.  418;  Mtason  v.  Kaine,  67  Pa.  St.  126;  Burk  v. 
Sen-ill,  80  Pa.  413;  21  Am.  Rep.  105.  But  see  King  v.  Pyle,  8  S.  &  R.  (Pa.) 
J66;  Bitner  v.  Brough,  11  Pa.  St.  127. 

4  Haddock  v.  Taylor,  74  Tex.  216;   11   S.  W.  Rep.  1G93. 

•Post,  ch.  11. 

•MeConnell  v.  Dunlop.  Hard.  (Ky.)  44;  3  Am.  Dec,  723;  Stephenson  v- 
Harrison,  3  Litt.  (Ky.)  170. 


MEASURE  OF  DAMAGES   FOR  INABILITY  TO   CONVEY  TITLE.        227 

that  a  vendor  is  liable  to  the  purchaser  in  substantial  damages 
when  he  knows  that  the  title  is  not  complete,  even  though  he  had 
a  reasonable  expectation  of  completing  it  by  the  time  fixed  for 
performing  the  contract,  there  would  seem  to  be  no  great  hardship 
in  imposing  the  same  consequences  upon  a  vendor  who  not  only 
knows  that  his  title  is  defective,  but  fails  to  disclose  that  fact  in 
his  negotiations  with  the  purchaser.  Whether  the  vendor  has  been 
guilty  of  fraud  in  respect  to  the  title,  is  a  question  of  fact  to  be 
determined  by  the  jury.  Instructions  to  the  jury  should  not  be  so 
drawn  as  to  assume  the  existence  of  fraud  in  the  vendor.1  Accord- 
ingly it  has  been  held  error  in  the  court,  on  an  inquiry  of  dam- 
ages, to  instruct  the  jury  that  the  failure  of  the  vendor  to  perform 
his  contract  raises  a  presumption  of  fraud,  and  authorizes  them 
to  award  the  purchaser  damages  for  the  loss  of  his  bargain.* 

It  is  also  error  in  the  court  to  assume  the  non-existence  of  fraud 
on  the  part  of  the  vendor  from  his  inability  to  convey,  and,  upon  a 
motion  for  judgment  by  default,  to  assess  the  damages  at  the  con- 
sideration money  and  interest  without  directing  an  inquiry  by  a 
jury,  even  though  the  declaration  contained  no  express  averment 
of  fraud.3  It  has  been  held  that  if  the  title  has  been  made  so 
doubtful  by  reason  of  the  vendor's  unauthorized  dealings  with  the 
property  that  the  purchaser  cannot  be  compelled  to  take  it,  the 
latter  may  have  damages  for  the  loss  of  his  bargain.4 

The  purchaser  is  not  entitled  to  substantial  damages  where  the 
vendor's  fraud  is  of  a  kind,  or  is  perpetrated  under  circumstances, 
that  can  operate  him  no  injury.6 

In  New  York  it  is  held,  in  case  of  fraudulent  misrepresenta- 
tions as  to  the  title,  that  it  is  not  necessary  for  the  plaintiff  to 
allege  nor  prove  actual  damages.6 

§  98.  WHERE  THE  VENDOR  SELLS  EXPECTING  TO  OBTAIN 
THE  TITLE.  It  may  happen  that  a  vendor,  without  legal  or  equi- 
table title,  sells  lands  with  the  bona  fide  intention  or  expectation 
of  acquiring  the  complete  legal  title  by  the  time  fixed  for  completing 
the  contract.  And  it  frequently  happens  that,  having  the  equitable 

1  Davis  v.  Lewis,  4  Bibb  (Ky.),  456. 

'Rutledge  v.  Laurence,  1  A.  K.  Marsh.   (Ky.)   396. 

•Goff  v.  Hawks,  5  J.  J.  Marsh.   (Ky.)  342. 

4Wohlfarth  v.  Chamberlain,  14  Daly  (N.  Y.),  180.  In  this  case,  the  vendor 
derived  title  through  a  sale  previously  made  by  himself  as  an  assijrnee  for  the 
benefit  of  creditors,  the  circumstances  of  which  strongly  tended  to  show  fraud 
<on  his  part,  and  rendered  the  title  doubtful. 

•Post,  ch.  11. 

•Blumenfeld  v.  Stine,  87  N.  Y.  Supp.  81;  42  Misc.  411. 


228  MABKETABLE  TITLE  TO  BEAL  ESTATE. 

title,  he  sells  expecting  to  get  in  the  legal  title  and  to  be  able  to 
convey  at  the  appointed  time.  In  the  former  case,  the  contract 
being  a  mere  speculation  on  his  part,  it  is  apprehended  that  the 
vendor  would  be  liable  to  the  purchaser  for  the  loss  of  his  bargain. 
It  has  been  so  held  in  the  latter  case  with  less  reason.  The  leading 
case  on  this  point  is  Hopkins  v.  Grazebrook.1  Here  the  purchaser 
of  an  estate  put  it  up  at  auction  before  he  himself  had  received  a 
conveyance,  and  afterwards  his  vendor  refused  to  convey,  and  it 
was  held  that  the  purchaser  at  auction  was  entitled  to  damages  for 
the  loss  of  his  bargain.  This  case  has  been  criticised  upon  the 
ground  that  equitable  titles  are  as  much  the  subject  of  valid  sale  as 
other  property.2  The  decision  seems,  however,  to  have  proceeded 
largely  upon  the  idea  that  it  was  a  fraud  in  the  vendor  to  hold  out 
the  estate  as  his  own,  when  he  knew  he  had  not  the  legal  title.  Of 
course,  the  sale  of  an  equitable  title,  as  such,  is  valid  and  enforcible. 
But  the  sale  of  an  estate  without  disclosing  the  fact  that  the 
vendor's  title  is  merely  equitable  presents  a  very  different  question. 
"With  stronger  reason  it  has  been  held  that  one  who  falsely  or  wrong- 
fully assumes  authority  to  sell  as  agent  or  auctioneer,  will  be  liable 
to  the  purchaser  for  the  loss  of  his  bargain,  if  the  owner  refuse  to 
ratify  and  perform  the  contract.8  Upon  a  principle  similar  to  that 
which  makes  the  vendor  liable  for  the  loss  of  the  purchaser's  bar- 
gain, where  the  title  turns  out  to  be  equitable  only,  and  the  holder 
of  the  legal  title  refuses  to  convey,  it  has  been  held  that  if  the  ven- 
dor enter  into  the  contract  knowing  that  his  ability  to  convey  a  perfect 
title  depends  upon  a  contingency,  and  that  contingency  do  not  trans- 
pire, the  purchaser  will  be  entitled  to  damages  for  the  loss  of  his 
bargain.4  The  leading  American  case  upon  this  point  is  Pumpelly 
v.  Phelps.5  There,  a  trustee  having  power  to  convey  only  upon  the 

'8B.  &C.  81. 

sl  Sugd.  (8th  Am.  ed.)  540. 

'Bush  v.  Cole,  28  N.  Y.  261;  84  Am.  Dec.  343,  where  an  auctioneer  sold  the 
premises  for  less  than  the  sum  at  which  he  was  authorized  to  sell  by  his  princi- 
pal. But  see  Key  v.  Key,  3  Head  (Tenn.),  448,  451,  where  it  was  said:  "Where 
a  man,  without  authority,  sells  the  land  of  another  and  enters  into  no  covenants, 
btat  receives  the  consideration,  the  measure  of  damages  would  be  the  money 
received,  and  interest. 

4  Chitty  Cont.  (9th  Eng.  ed.)  289;  3  Sedg.  Dam.  (8th  ed.)  §  1011. 

*40  N.  Y.  59;  100  Am.  Dec.  468;  S.  C.,  nom.  Brinkerhoff  v.  Phelps,  43  Barb. 
(N.  Y.)  469. 


MEASURE  OP  DAMAGES  FOR  INABILITY  TO   CONVEY  TITLE.        229 

written  consent  of  the  cestui  que  trusty  sold  the  estate  but  was 
unable  to  obtain  such  consent,  and  it  was  held  that  the  purchaser 
might  recover  as  damages  the  difference  between  the  contract  price 
and  the  value  of  the  land  at  the  time  of  the  breach,  though  the  ven- 
dor entered  into  the  contract  in  good  faith,  believing  that  the  con- 
sent of  the  cestui  que  trust  would  be  given.  But  if  the  purchaser 
knows  at  the  time  of  the  contract  that  the  ability  of  the  vendor  to 
convey  depends  upon  a  contingency,  the  better  opinion  seems  to  be 
that  he  can  recover  only  nominal  damages,  if  the  vendor  be  unable 
to  complete  the  contract,1  unless,  indeed,  having  in  view  that  con- 
tingency, the  vendor  nevertheless  undertakes  to  perfect  the  title  by 
a  specified  time.2  Of  course,  if  the  purchaser  knows  that  the 
title  of  the  vendor  is  merely  equitable,  but  agrees  to  accept 
it,  such  as  it  is,  he  cannot  recover  either  nominal  or  sub- 
stantial damages,  if  the  vendor  be  unable  to  convey.*  For 
the  same  reasons  it  has  been  frequently  held  that  a  vendor  in 
good  faith  who  is  unable  to  procure  his  wife  to  join  in  the  convey- 
ance, and  relinquish  her  contingent  right  of  dower,  must  answer  in 
damages  to  the  purchaser  for  the  loss  of  his  bargain.4  It  cannot  be 
denied  that  this  rule  would  produce  a  hardship  in  a  case  in  which 
the  vendor  had  been  induced  by  his  wife  to  believe  that  she  would 
relinquish  her  rights  in  the  premises.  At  the  same  time  it  must  be 
remembered  that  if  the*vendor  desires  to  escape  from  the  contract, 
he  would,  if  liable  for  nominal  damages  only,  have  a  strong  tempta- 

1  Margraf  v.  Muir,  57  N.  Y.  155,  where  the  vendor  had  only  a  dower  right  in 
the  premises,  and  the  purchaser  knew  that  an  order  of  court  authorizing  a  con- 
veyance would  have  to  be  obtained,  the  rights  of  infants  being  involved,  and, 
also,  that  under  the  peculiar  circumstances  of  the  case,  such  an  order  could  not 
be  obtained  without  deceiving  the  court  as  to  the  true  value  of  the  premises. 
Distinguishing  Pumpelly  v.  Phelps,  40  N.  Y.  59;  100  Am.  Dec.  468. 

1  Thus,  in  Shaw  v.  Wilkins,  8  Humph.  (Tenn.)  646,  the  vendor  informed  the 
purchaser  at  the  time  of  the  contract  that  the  title  was  outstanding  in  third  par- 
ties, and  that  he  expected  to  obtain  it  by  the  time  fixed  for  completing  the  con- 
tract. The  vendor  being  unable  to  get  in  the  title,  it  was  held  that  the  purchaser 
might  recover  damages  for  the  value  of  the  land  at  the  time  of  the  breach. 

'Ante,  8  11.      2  Sutherland  Dam.  221. 

4  Post,  ch.  19.  Drake  v.  Baker,  34  N.  J.  L.  358.  Tirnbey  v.  Kinsey.  18  Hun 
(N.  Y.),  255;  Heimburg  v.  Ismay,  35  N.  Y.  Super.  Ct.  35,  40.  Martin  v.  Mer- 
ritt,  57  Ind.  34;  26  Am.  Rep.  45;  Puterbaugh  v.  Puterbaugli,  7  Ind.  App.  380; 
8.  C..  34  N  E.  Rep.  611. 


230  MARKETABLE  TITLE  TO  REAL  ESTATE. 

tion  to  collude  with  his  wife  and  induce  her  to  withhold  her  con- 
sent. In  Pennsylvania  it  has  been  held  that  if  the  wife  refuse  to 
join  in  the  conveyance,  the  purchaser  can  recover  nominal  damages 
only,  for  the  reason  that  the  law  will  not  indirectly  coerce  specific 
performance  on  the  part  of  the  wife  by  awarding  punitive  damages 
against  the  husband.1 

If  the  vendor  contract  that  a  third  person  shall  convey  a  title  to 
the  land,  the  measure  of  damages  will  be  the  value  of  the  land  at 
the  time  of  the  breach.2 

§  99.  WHERE  THE  VENDOR  REFUSES  TO  CURE  A  DETECT  OR 
REMOVE  INCUMBRANCES.  Where  the  title  is  defective  or  the 
estate  incumbered,  and  the  vendor  has  the  power  to  cure  the  defect 
or  remove  the  incumbrance,  but  neglects  or  refuses  so  to  do,  the 
purchaser  may  recover  as  damages  the  value  of  the  premises  at  the 
time  of  the  breach.8  Upon  the  same  principle  it  has  been  held  that 
if  a  vendor  expressly  agree  to  perfect  the  title,  or  to  do  some  act 
necessary  to  save  the  purchaser  harmless  from  the  claims  or  demands 
of  third  persons,  and  fails  to  perform  his  contract  in  those  respects, 
whereby  the  estate  is  lost  to  the  purchaser,  the  rule  limiting  the 
damages  to  the  consideration  money  does  not  apply,  and  the  pur- 
chaser may  recover  full  damages  for  whatever  loss  he  has  sustained.4 

1  Burk  v.  Serrill,  80  Pa.  St.  413;  21  Am.  Rep.  105.  p  See,  also,  Dormer  v.  Reden- 
baugh,  61  Iowa,  269;  16  N.  W.  Rep.  127,  and  post,  ch.  18,  §  199,  and  notes. 

2  3  Sedg.  Dam.  (8th  ed.)  §  1007.     Pinkston  v.  Huie,  9  Ala.  252;  Gibbs  v.  Jemi- 
son,  12  Ala.  820.     Dyer  v.  Dorsey,  1  Gill  &  J.  (Md.)  440.     In  Beard  v.  Delaney, 
35  Iowa,  16,  the  vendor  having  received  §400  for  the  land,  executed  a  bond  in 
the  penalty  of  $400,  to  procure  title  from  a  third  person,  and  it  was  held  that  the 
purchaser  might  recover  that  sum  as  "liquidated  damages,"  though  he  had 
received  a  conveyance  of  the  land  and  had  not  been  disturbed  in  the  possession. 
In  Yokum  v.  Mo-Bride,  56  Iowa,  139,  the  vendor  agreed  to  perfect  the  title  by 
procuring  a  patent  to  the  purchaser  from  the  State,  and  the  court  held  that  if  the 
vendor  was  unable  to  procure  the  patent  without  fault  on  his  part,  the  purchaser 
could  recover  only  nominal  damages. 

» 1  Chitty  Cont.  (9th  Eng.  ed.)  289;  3  Sedg.  Dam.  182.  Williams  v.  Glenton,  I* 
R.,  1  Ch.  App.  200;  Simons  v.  Patchett,  7  El.  &  Bl.  568;  Goodwin  v.  Francis, 
L.  R.,  5  C.  P.  295;  Robinson  v.  Hardman,  1  Exch.  850;  Engel  v.  Fitch,  4  Q.  B. 
659.  Kirkpatrick  v.  Downing,  58  Mo.  32;  17  Am.  Rep.  678. 

4  Taylor  v.  Barnes.  69  N.  Y.  430.  Where  the  premises  sold  were  subject  to  a 
species  of  vendor's  lien  in  favor  of  the  State,  against  which  lien  the  vendor 
agreed  to  protect  the  purchaser,  the  court,  after  observing  that  the  rule  limiting 
the  measure  of  damages  to  the  purchase  money  paid,  with  interest,  does  not 
apply  where  the  vendor  has  sold  lands  to  which  he  has  not  a  perfect  title,  but 


MEASURE   OF  DAMAGES   FOR  INABILITY  TO   CONVEY  TITLE.        231 

If  the  purchaser  himself  lay  out  money  in  removing  incumbrances, 
or  in  perfecting  the  title,  he  can  recover  as  damages  only  the  amount 
expended  for  those  purposes.1  If  he  expends  in  perfecting  the  title 
a  sum  greater  than  the  purchase  money,  it  seems  that  he  cannot 
recover  the  excess  unless  the  case  be  one  in  which  he  would  be 
entitled  to  damages  for  the  loss  of  his  bargain.* 

§  100.  LIQUIDATED  DAMAGES.  The  parties  may  always  agree 
upon  an  amount  to  be  paid  as  liquidated  damages  in  case  the  vendor 
fails  to  make  title  at  the  specified  time,  and  the  purchaser  will  be 
entitled  to  recover  that  amount  as  damages,  though  it  be  equivalent  to 
<lamages  for  the  present  value  of  the  land.  But  the  amount  agreed 
upon  must  be  reasonable ;  otherwise  it  will  be  regarded  as  a  penalty,3 
in  which  case,  it  is  presumed,  the  actual  value  of  the  land  at  the  time 
of  the  breach  of  the  contract  would  be  allowed  as  damages.4  The 

which  he  undertakes  to  complete  and  perfect,  and  neglects  so  to  do,  continued : 
•J  In  this  case  there  is  an  expressed  agreement  for  indemnity,  and  a  recovery 
\vhich  does  not  give  the  vendee  the  benefit  of  his  bargain,  and  the  value  of  his 
purchase  does  not  indemnify  him  against  loss.  The  true  rule  of  damages  as  a 
measure  of  indemnity  in  such  case  is  the  value  of  the  land  at  the  time  of  the 
eviction  or  other  breach  of  the  contract,  with  interest  from  that  time.  The 
plaintiff  lost  the  benefit  of  her  purchase  by  the  omission  of  the  defendants  to 
perform  their  agreement  by  paying  for  the  lands  to  perfect  her  title.  The 
loss  was  occasioned  by  the  act  of  the  defendants,  against  which  they  cove- 
nanted to  indemnify  the  plaintiff,  not  merely  by  restoring  the  consideration  of 
the  purchase,  but  by  paying  her  the  equivalent  of  the  lands  to  which  she  was 
entitled.  This  alone  would  adequately  indemnify  her  against  loss." 

1  2  Sutherland  Dam.  228.  The  same  rule  prevails  in  an  action  for  breach 
of  the  covenant  of  warranty  or  against  incumbrances.  Post,  §§  129,  164. 

=  2  Sutherland  Dam.  228.  With  the  exception  of  Cox  v.  Henry,  32  Pa.  St. 
18,  all  the  cases  cited  by  this  author  to  the  proposition  in  the  text  were 
actions  for  breach  of  covenants  for  title.  8ee  post,  §  131.  In  Chartier  v. 
Marshall,  56  N.  H.  478,  where  the  vendor  refused  to  convey,  damages  were 
allowed  the  purchaser  for  an  excess  over  the  consideration  money  paid  by  him 
to  get  in  the  outstanding  title. 

8  Gates  v.  Parmly,  93  Wis.  294 ;  66  N.  W.  253. 

4  1  Sedg.  Dam.  (8th  ed.)  §  405,  where  the  rule  was  thus  stated :  "  Wherever 
the  damages  were  evidently  the  subject  of  calculation  and  adjustment  between 
the  parties,  and  a  certain  sum  was  agreed  upon  and  intended  as  compensation, 
and  is  in  fact  reasonable  in  amount,  it  will  be  allowed  by  the  court  as  liquidated 
damages.  Holmes  v.  Holmes,  12  Barb.  (N.  Y.)  137.  where  it  was  said  by  the 
<-ourt:  "When  the  damages  to  be  recovered  are  liquidated  in  advance  by  the 
terms  of  the  contract  it  is  a  mistake  to  assume  that  the  party  claiming  is  alone 
benefited.  Such  a  stipulation  may  be  as  beneficial  to  the  party  who  pays  as  to 
him  who  receives.  Both  enter  into  tfce  contract  with  a  full  knowledge  of  all 


232  MARKETABLE  TITLE  TO  KEAL  ESTATE. 

penalty  of  a  title  bond  is  usually  double  the  purchase  money,  and 
when  that  is  the  case,  is,  of  course,  as  it  purports  to  be,  merely  a 
penalty  and  not  liquidated  damages.1  But  if  a  purchaser  bring 
covenant  on  a  title  bond,  and  the  case  be  one  in  which  he  is  entitled 
to  damages  for  loss  of  his  bargain,  it  has  been  held  that  his  recovery 
cannot  be  limited  by  the  penalty  of  the  bond.2  And,  generally,  it 
may  be  said,  that  the  whole  agreement  may  be  looked  to  for  the 
purpose  of  determining  whether  the  sum  mentioned  in  a  title  bond 
as  a  "  penalty  "  is  in  fact  a  penalty  or  liquidated  damages.8  If  the 
agreement  contain  various  stipulations  of  different  degrees  of  import- 
ance, besides  the  stipulation  to  make  a  good  title,  and  the  damages 
for  the  breach  of  some  of  the  stipulations  would  be  certain,  and 
of  others  uncertain,  and  a  large  sum  is  expressed  in  the  agreement 
as  payable  on  the  breach  of  any  of  the  stipulations,  such  sum  will  be 
regarded  as  a  penalty,  and  not  as  liquidated  damages.4  In  a 
case  in  Illinois  the  following  rule  was  announced :  "  Where  the 
parties  to  the  agreement  have  expressly  declared  the  sum  to  be 
intended  as  a  forfeiture  or  penalty,  and  no  other  intent  is  to  be  col- 
lected from  the  instrument,  it  will  generally  be  so  treated,  and  the 

their  rights  and  liabilities.  The  amount  to  be  paid  is  not  to  be  diminished, 
neither  is  it  to  be  enlarged.  Each  may  estimate  the  consequences  of  a  breach 
with  certainty  and  precision,  and  deport  himself  accordingly."  In  Leggett  v. 
Mut.  Ins.  Co.,  53  N.  Y.  394,  it  was  held  that  an  agreement  to  pay  $5,000  liqui- 
dated damages  in  case  of  the  vendor's  refusal  or  failure  to  execute  and  deliver  a 
proper  deed  applied  only  to  the  agreement  to  execute  the  deed,  and  not  to  the 
warranty  of  title  implied  from  the  agreement  to  sell. 

'Burrv.  Todd,  41  Pa.  St.  206.  Stewart  v.  Noble,  1  Green  (Iowa),  28.  See, 
also,  Dyer  v.  Dorsey,  1  Gill  &  J.  (Md.)440.  But  the  penalty  of  a  title  bond  is 
not  necessarily  double  the  purchase  price,  and  it  is  not  evidence  that  one-half  of 
it  was  the  value  of  the  land  or  the  amount  of  the  purchase  price,  and  it  is  error 
for  the  court  so  to  instruct  the  jury,  Duncan  v.  Tanner,  2  J.  J.  Marsh.  (Ky.) 
399. 

'Noyesv.  Phillips,  60  N.  Y.  408.  Sweem  v.  Steele,  5  Iowa,  352.  But  see 
Spruill  v.  Davenport,  5  Ired.  L.  (N.  C.)  145.  If  the  action  be  debt  instead  of 
covenant  the  plaintiff's  recovery  would  of  course  be  limited  by  the  penalty.  In 
Beard  v.  Delany,  35  Iowa,  16,  Where  the  vendor  entered  into  a  bond  in  the 
"penalty  "  of  $500  to  perfect  the  title,  that  sum  having  been  paid  to  him  as  con- 
sideration money,  it  was  held  that  the  $500  should  be  treated  as  liquidated 
damages,  and  the  purchaser  was  permitted  to  recover  that  amount. 

8  Genner  v.  Hammond,  36  Wis.  277. 

4  Carpenter  v.  Lockhart,  1  Ind.  434.  Gates  v.  Parmly,  93  Wis.  294,  66  N. 
W.  253. 


MEASUBE   OF  DAMAGES   FOR  INABILITY  TO  CONVEY  TITLE.        233 

recovery  will  be  limited  to  the  damages  sustained  by  the  breach  of 
the  covenant  it  was  to  secure.  On  the  other  hand,  it  will  be 
inferred  that  the  parties  intended  the  sum  named  as  liquidated  dam- 
ages, where  the  damages  arising  from  the  breach  are  uncertain  and 
are  not  capable  of  being  ascertained  by  any  satisfactory  and  known 
rule."  Accordingly,  a  written  contract  in  that  case  for  the  exchange 
of  farms  having  provided  that  in  case  either  party  failed  to  convey 
at  the  appointed  time  such  party  would  "  forfeit  and  pay  as  dam- 
ages" to  the  other  the  sum  of  $1,500,  it  was  held,  in  view  of  the 
difficulty  of  proving  the  actual  damages  sustained  by  the  plaintiff, 
that  the  sum  named  should  be  treated  as  liquidated  damages.1 

1  Gobble  v.  Linden,  76  111.  157.     See,  also,  2  Grcenl.  Ev.  §§  258,  259. 


CHAPTER  XL 

ACTION  AGAINST  VENDOR  FOR  DECEIT. 

GENERAL  PRINCIPLES.     §  101. 

WHAT  CONSTITUTES  FRAUD  WITH  RESPECT  TO  THE  TITLE. 

Concealment  of  defects.    §  102. 
Wilful  or  careless  assertions.    §  103. 
Defects  which  appear  of  record.    £  104. 
Existence  of  fraudulent  intent.     §  105. 
Statements  of  opinion.     §  106. 
Pleading.     §  107. 

§  101.  GENERAL  PRINCIPLES.  Fraud  on  the  part  of  a  vendor  of 
real  estate  in  misrepresenting  or  concealing  the  state  of  his  title 
materially  enlarges  the  scope  of  the  purchaser's  remedies  in  several 
particulars,  the  principal  of  which  may  be  thus  classified  :  (1)  It  givea 
the  purchaser  the  right  to  hold  the  vendor  liable  for  defects  of  title, 
though  the  contract  has  been  executed  by  the  acceptance  of  a  con 
veyance  without  covenants  for  title  ; *  (2)  it  entitles  the  purchaser  to 
the  rescission  of  an  executed  contract  of  sale ; 2  (3)  it  entitles  the  pur- 
chaser, on  rescission  of  the  contract,  whether  executed  or  executory, 
to  retain  possession  of  the  premises  until  he  is  reimbursed  for  any 
loss,  injury  or  expense  he  may  have  incurred ; 3  (4)  it  entitles  the 
purchaser  to  recover,  in  an  action  for  deceit,  damages  for  the  loss  of 
his  bargain,  over  and  above  the  consideration  money,  and  any  sum 
expended  by  him  for  improvements ; 4  (5)  it  gives  the  purchaser  the 
right  to  recover  back  or  detain  the  purchase  money,  whether  the 
contract  has  been  executed  by  a  conveyance,  whether  that  convey- 
ance was  with  or  without  covenants  for  title,5  and,  if  with  covenants, 
whether  they  have  or  have  not  been  broken  ; 6  (6)  it  absolves  the 

1 1  Sugd.  Vend.  7,  247. 

»28ugd.  Vend.  553. 

1  Young  v.  Harris,  2  Ala.  108;  Garner  v.  Leverett,  32  Ala.  413.  Kiefer  v. 
Rogers,  19  Minn.  38. 

4Rawle'Covt.  ch.  9;  1  Sugd.  Vend.  358. 

*  2  Sugd.  Vend.  553;  Rawle  Covt.  §322.  Diggs  v.  Kirby,  40  Ark.  420.  McDon- 
ald v.  Beall,  55  Ga.  288.  Haight  v.  Hayt,  19  N.  Y.  474.  Edwards  v.  McLeay, 
Coop.  308. 

'  Sugd.  Vend.  247.  Where  it  is  said  that  if  a  purchaser  is  entitled  to  relief  in 
a  case  of  fraud  in  respect  to  the  title,  "  it  is  not  important  that  he  has  not  been 
evicted;  if  the  rightful  owner  is  not  barred  by  adverse  possession,  the  purchaser 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  235 

purchaser  from  his  obligation  to  tender  the  purchase  money  and 
demand  a  conveyance  as  a  condition  precedent  to  an  action  against 
the  vendor;1  and  (7)  it  deprives  the  vendor  of  the  right  to  cure 
defects  or  remove  incumbrances,and  to  require  the  purchaser  to  take 
the  perfected  title.2  Several  of  the  remedies  here  mentioned  are 
concurrent ;  the  right  to  rescind  the  contract  in  equity ;  the  right 
to  recover  back  or  to  detain  the  purchase  money  at  law,  and  the 
right  to  recover  damages  at  law  for  the  deceit.  He  may,  of  course, 
elect  between  these  several  remedies ; 8  but  inasmuch  as  he  may 
recover  damages  in  excess  of  the  consideration  money  in  an  action 
for  the  deceit,  that  remedy  is  generally  to  be  preferred  to  assumpsit 
for  money  had  and  received  to  the  plaintiffs  use,  in  which  he  would 
only  recover  the  purchase  money  and  interest,  and  nothing  for  the 
loss  of  his  bargain.  The  purchaser  cannot  be  compelled  to  take  one 
of  those  remedies  instead  of  another ;  he  can  never  be  required  to 
accept  damages  in  lieu  of  rescission ;  *  nor  can  the  vendor  insist 
upon  rescinding  the  contract  and  returning  the  consideration 
where  the  purchaser  is  entitled  to  damages.  The  purchaser 
may,  of  course,  waive  his  right  to  damages,  and  sue  to  recover 
so  much  of  the  purchase  money  as  he  may  have  paid.5  If  the 
purchaser  desires  to  recover  damages  at  law  against  the  ven- 
dor guilty  of  fraud  in  respect  to  the  title,  his  appropriate  remedy 
at  common  law  is  an  action  on  the  case  in  the  nature  of  a  writ  of 
deceit.6  He  cannot,  if  his  action  be  for  breach  of  covenant,  increase 
his  damages  by  showing  fraud  on  the  part  of  the  vendor.7  It  is  true 
that  the  action  of  covenant  sounds  in  damages,  but,  as  has  been 

cannot  be  compelled  to  remain  during  the  time  to  run  in  a  state  of  uncertainty 
whether,  on  any  day  during  that  period,  he  may  have  his  title  impeached.  A 
court  of  equity  is  bound  to  relieve  a  purchaser  from  that  state  of  hazard  intc 
which  the  misrepresentation  of  the  seller  has  brought  him."  Whitlock  v.  Den- 
linger,  59  111.  96. 

1  Thomas  v.  Coultas,  76  111.  493. 

1  Green  v.  Chandler,  25  Tex.  148. 

*Krumm  v.  Beach,  96  N.  Y.  398. 

«1  Sugcl.  Vend.   (8th  Am.  ed.)   :J7(J.     Corbett  v.  McGregor  (Tex.  Civ.  App.) 
84  S.  W.  278. 

'Pearsoll  v.  Chapin,  44  Pa.  St.  9. 

•2  Bl.  Com.  166;  1  Sugd.  Vend.  236;  Kerr  on  Fraud  (Bump's  ed.),  p.  324. 
Carvill  v.  Jacks,  43  Ark.  439. 

TRawle  Covt.  §  159. 


236  MARKETABLE  TITLE  TO  REAL  ESTATE. 

already  seen,  the  purchaser's  recovery  is  limited  to  the  considera- 
tion money  and  costs  of  eviction.1  If  the  contract  be  under  seal, 
the  purchaser  may  elect  between  the  action  of  covenant  and  the 
action  on  the  case  for  deceit;  if  he  chooses  the  latter  remedy,  the 
objection  cannot  be  made  that  the  contract  is  under  seal,  and  that 
covenant  should  have  been  brought.2  The  purchaser  does  not  waive 
his  right  to  recover  damages,  in  a  case  of  fraud,  by  paying  the  pur- 
chase money.3  He  waives  his  right  to  rescind  the  contract  by 
remaining  in  possession  and  paying  the  purchase  money  after  dis- 
covering the  fraud.4  But  the  action  to  recover  damages  is  an  affirm- 
ance of  the  contract,  and  it  is  always  his  privilege  to  complete 
the  contract  without  impairing  his  right  to  reimbursement  for 
any  loss  which  he  may  have  incurred  through  the  vendor's  fraud.6 
If  the  purchaser  should  choose  to  keep  the  premises  and  bring 
an  action  for  damages  grounded  on  the  fraud,  his  possession  of  the 
premises,  if  it  be  probable  that  he  would  never  be  disturbed  therein, 
would,  it  is  apprehended,  be  considered  in  mitigation  of  damages. 
The  purchaser  is  not  entitled  to  relief  in  a  case  of  fraud  which 
cannot  operate  him  an  injury,6  as  where  the  vendor  had  previously 
conveyed  the  premises  to  a  stranger,  and  the  conveyance  failed  to 
take  effect  as  against  the  purchaser,  for  want  of  timely  acknowledg- 
ment and  registry.7  Nor  where  the  vendor  fraudulently  acquired 
the  title,  if  it  appear  that  the  person  defrauded  made  no  objection, 

1  Ante,  §  90,  and  post,  §  164. 

2  Parham  v.  Randolph,  4  How.  ( Misa. )  435 ;  35  Am.  Dec.  403  ;  English  v.  Bene- 
dict, 25  Miss.  167.    Munroe  v.  Pritchett,  16  Ala.  785;  50  Am.  Dec.  203;  Foster 
v.  Kennedy,  38  Ala.  359;  81  Am.  Dec.  56.     Clark  v.  Baird,  5  Seld.  (N.Y.)  183. 
See,  also,  Rawle  Covts.  (5th  ed.)   §  167;  Kerr  on  Fraud  (Am.  ed.),  326. 

» White  v.  Sutherland,  64  111.  181. 

'Strong  v.  Strong,  102  N.  Y.  69;  5  N.  E.  Rep.  799;  Schiffer  v.  Dietz,  83  N. 
Y.  300. 

5  2  Kent  Com.  480.  Owens  v.  Rector,  44  Mo.  389.  Smyth  v.  Merc.  Tr.  Co., 
18  Fed.  Rep.  486. 

•Crittenden  v.  Craig,  2  Bibb  (Ky.),  474.  Wuesthoff  v.  Seymour,  22  N.  J. 
Eq.  66,  where  it  was  held  that  falsely  representing  an  alley  to  be  a  private 
right  of  way,  instead  of  a  public  alley,  is  not  fraud  entitling  a  purchaser  to 
relief,  the  loss  or  injury  resulting  from  the  alley  being  in  either  case  sub- 
stantially the  same.  The  same  principle  was  declared  in  Morrison  v.  Lods, 
39  Cal.  38,  but  was  disapproved  in  Kelly  v.  R.  Co.,  74  Cal.  557. 

7  Meeks  v.  Garner,  93  Ala.  17;  8  So.  Rep.  378.  And  where  land  has  been  con- 
veyed and  the  deed  recorded,  a  subsequent  contract  by  the  grantor  to  sell  the 
eame  land  to  a  stranger,  dots  not  place  a  cloud  on  the  title  of  the  grantee,  nor 
furnish  a  ground  of  objection  to  thp  title  by  the  vendee.  Goodkind  v.  Bart- 
ktt,  153  111.  419;  38  N.  E.  Rep.  1045. 


ACTION  AGAINST  VENDOR  FOR  DECEIT.          237 

after  reasonable  opportunity  and  full  knowledge  of  the  facts.1  Nor 
where  an  incumbrance,  not  disclosed  by  the  vendor,  is  released  by 
the  incumbrancer,  and  the  purchaser  suffers  no  actual  injury.2  Nor 
where  an  incumbrance,  fraudulently  concealed,  has  been  removed 
by  the  vendor  before  decree  in  a  suit  by  the  purchaser  for  rescis- 
sion.3 Nor,  generally,  in  any  case  in  which  the  purchaser  is  not 
damnified  by  the  alleged  fraud.4 

The  contract  may,  of  course,  be  rescinded  if  the  fraud,  in 
respect  to  the  title,  was  perpetrated  by  an  agent.  An  agent  or 
attorney  of  the  vendor  conducting  the  negotiations  on  his  behalf, 
having  knowledge  of  an  incumbrance  on  the  estate,  must  disclose 
it.6  But  it  seems  that  the  principal  will  not  be  liable  to  an  action 
for  damages  in  a  case  of  deceit  by  the  agent,  unless  the  deceit  was 
impliedly  authorized  by  the  principal.6  An  action  in  such  case 
may  be  maintained  against  the  agent  himself;  it  is  no  defense 
that  he  was  acting  for  another.7  Where  a  husband  sold  the 
lands  of  his  wife,  and  fraudulently  misrepresented  the  title, 
and  the  wife  received  the  benefit  of  the  sale,  it  was  held  that 
she  was  bound  by  his  acts  and  liable  in  damages,  though  the  con- 
tract was  made  in  the  name  of  the  husband,  and  without  her 

'Comstock  v.  Ames,  1  Abb.  App.  Dec.   (N.  Y.)   411. 

'Campbell  v.  Whittingham,  5  J.  J.  Marsh.   (Ky.)  46;  20  Am.  Dec.  241. 

*  Davidson  v.  Moss,  5  How.  (Miss.)  L.  673.  But  see  post,  as  to  right  of 
vendor  to  remove  objections  where  he  has  been  guilty  of  fraud,  §  314. 

•Halls  v.  Thompson,  1  Sm.  &  M.  (Miss.)  489.  Board  of  Commrs.  v. 
Younger,  29  Cal.  172.  Walsh  v.  Hall,  66  N.  C.  233. 

5  1  Sugd.  Vend.  (8th  Am.  ed.)  9.  Evans  v.  Bicknell,  6  Ves.  174,  193,  semble; 
Burrowes  v.  Locke,  10  Ves.  470;  Bowles  v.  Stewart,  1  Sch.  &  Lef.  227.  Gill 
v.  Corbin,  4  J.  J.  Marsh.  (Ky.)  392.  Concord  Bank  v.  Gregg,  14  N.  H.  331. 

•Kerr  on  Fraud  (Am.  ed.),  326;  citing  New  Brunswick  R.  Co.  v.  Conybeare, 
9  H.  L.  Cas.  1 ;  Henderson  v.  Lacon,  L.  R.,  5  Eq.  262.  In  Law  v.  Grant,  37  Wis. 
f>48,  it  was  held  that  if  an  agent  effected  a  sale  of  the  principal's  land  by  false 
representations  or  other  fraud,  without  the  authority  or  knowledge  of  the  prin- 
cipal, the  latter  is  chargeable  with  such  fraud  in  the  same  manner  as  if  he  had 
known  or  authorized  it.  The  representations  in  this  case  were  made  with  respect 
to  the  value  of  the  land,  and  not  with  respect  to  the  title,  but  there  would  seem 
to  be  no  difference  in  principle  between  the  two.  The  purchaser  sot  up  the 
agent's  fraud,  by  way  of  counterclaim  for  damages,  as  a  defense  to  a  foreclosure 
proceeding.  It  may  be  doubted  whether  the  principal  could  be  held  liable  for 
his  agent's  fraud  in  an  action  for  damages,  unless  the  fraud  was  authorized 
by  him.  New  Brunswick  R.  Co.  v.  Conybeare,  9  H.  L.  Cas.  1. 

7  Riley  v.  Bell,  120  Iowa,  618 ;  95  N.  W.  170. 


238  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

knowledge.1  An  agent  fraudulently  misrepresenting  the  title  may, 
of  course,  be  held  personally  liable  for  damages.2  A  trustee  who 
makes  false  representations  as  to  incumbrances  on  the  property  sold 
by  him,  will  be  personally  liable  to  the  purchaser.8  In  England, 
and  in  some  of  the  American  States,  a  vendor  or  his  agent,  fraudu- 
lently misrepresenting  the  title,  or  fraudulently  concealing  defects 
of  title,  for  the  purpose  of  making  a  sale,  is,  by  statute,  made  liable 
to  fine  and  imprisonment,  in  addition  to  a  civil  action  for  damages.4 

The  grounds  upon  which  the  purchaser  is  entitled  to  damages  at 
law,  or  to  relief  in  equity,  where  fraud  has  been  practiced  upon  him 
respecting  the  title,  are  in  most  cases  the  same ; 5  consequently,  it 
has  not  been  deemed  necessary  in  the  following  pages  to  distinguish 
the  cases  in  which  damages  were  sought  or  rescission  of  the  contract 
demanded  by  the  purchaser,  or  to  consider  the  subject  separately 
with  respect  to  the  particular  form  of  relief  or  redress  to  which  he 
may  be  entitled. 

Where  the  sale  is  by  parol  and  the  terms  of  the  contract  between 
the  parties  are  afterwards  reduced  to  writing,  fraudulent  representa- 
tions of  the  vendor  at  the  sale  will  not  be  merged  in  the  written 
contract.' 

§  102.  WHAT  CONSTITUTES  FRAUD  WITH  RESPECT  TO  THE 
TITLE  Concealment  of  defects.  The  following  propositions  may  be 
stated  aa  embodying  the  principal  features  of  the  decisions  as  to  what 

1  Krumm  v.  Beach,  96  N.  Y.  398. 

'Norris  v.  Kipp,  (Iowa)  38  N.  W.  Rep.  152. 

»1  Sugd.  Vend.  (8th  Am.  ed.)  12. 

4  24  Viet.  chap.  96,  §  28.  Pub.  Stat.  Mass.  1882,  p.  1147.  Gen.  Stat.  Minn. 
1881,  p.  539. 

*  Sugd.  Vend.  243,  where  it  is  said  that,  in  a  case  of  fraud  by  the  vendor  in  the 
sale  of  real  estate,  ' '  a  foundation  is  laid  for  maintaining  an  action  to  recover 
damages  for  the  deceit  so  practiced;  and  in  a  court  of  equity,  a  foundation  is 
laid  for  setting  aside  the  contract  which  was  founded  upon  a  fraudulent  basis." 
While  the  proposition  stated  in  the  text  is  true  in  a  general  sense,  it  will  perhaps 
admit  of  some  qualification.  A  court  of  equity  might  freely  decree  the  rescission 
of  a  contract  upon  evidence  of  fraud  which  a  court  of  law  would  deem  insuffi- 
cient to  warrant  a  judgment  against  the  vendor  for  damages.  And,  on  the  other 
hand,  in  the  case  of  an  executed  contract,  the  court  might  be  influenced  in  refus- 
ing a  rescission  by  the  consideration  that  the  purchaser  still  had  his  remedy  on 
the  covenants  contained  in  his  deed. 

•Shanks  v.  Whitney,  66  Vt.  405. 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  239 

acts  or  conduct  of  the  vendor  amount  to  fraud  in  respect  to  the  title 
which  he  undertakes  to  convey  : 

(1)  The  vendor  is  guilty  of  fraud  if  he  conceals  a  fact  material 
to  the  validity  of  the  title,  lying  peculiarly  within  his  own  knowl- 
edge, and  which  it  is  his  duty  to  disclose.1  It  is  as  much  a  fraud  to 

1  Story  Eq.  §  207;  Sugd.  Vend.  271;  Sugd.  Law  of  Prop.,  etc.,  653.  Early  v. 
Garrett,  9  Barn.  &  Cres.  928.  Laidlaw  v.  Organ,  2  Wh.  (U.  8.)  195.  Saltonstall 
v.  Gordon,  33  Ala.  151.  State  v.  Holloway,  3  Blackf.  (Ind.)  47.  Emmons  v. 
Moore,  85  111.  304;  Strong  v.  Lord,  107  111.  26.  Crutchfield  v.  Danilly,  16  Ga. 
434.  Young  v.  Bumpass,  1  Freem.  Ch.  (Miss.)  241.  Rosemau  v.  Conovan,  43 
Cal.  110.  Brown  v.  Montgomery,  20  N.  Y.  287;  75  Am.  Dec.  404.  Bank  v.  Bax- 
ter, 31  Vt.  101.  Carr  v.  Callaghan,  3  Litt.  (Ky.)  365,  875.  Corbett  v. 
McGregor,  (Tex.  Civ.  App.)  84.  This  is  the  suppressio  veri  of  the  text 
writers,  and  is  substantially  the  rule  established  by  the  leading  case  of 
Edwards  v.  McLeay,  Coop.  308,  Sir  WM.  GRANT  delivering  the  opinion.  To 
this  Lord  ELDON  added  on  appeal,  that  if  one  party  make  a  representation 
which  he  knows  to  be  false,  but  the  falsehood  of  which  the  other  party  has  no  mean- 
of  discovering,  he  is  guilty  of  fraud,  Sugd.  Vend.  246.  In  the  case  of  Brown 
v.  Manning,  3  Minn.  35;  74  Am.  Dec.  736,  it  was  held  that  the  mere  execution 
and  delivery  of  a  deed,  with  general  warranty  conveying  land  which  the  grantor 
had  previously  conveyed  to  a  third  person,  does  not  of  itself  amount  to  fraud, 
and  that  there  must  be  some  false  representation  of  fact,  with  intent  to  deceive, 
accompanying  the  act,  in  order  to  entitle  the  grantee  to  relief.  It  is  exceedingly 
difficult  to  reconcile  this  decision  with  the  general  rule  that  the  vendor  is  guilty 
of  fraud  if  he  suppresses  any  fact  material  to  the  validity  of  the  title.  The 
court  cites  no  authority,  and  gives  no  reason  for  the  decision  other  than  that 
"there  may  have  been,  and  frequently  does  exist,  a  condition  of  things  which 
would  make  it  perfectly  safe  for  the  purchaser  to  take  a  deed  of  land  under  such 
circumstances,  and  rely  upon  his  covenants  for  his  security  against  the  outstand- 
ing title,  and  such  a  transaction  could  take  place  in  perfect  good  faith."  In  Alax- 
field  v.  Bierbauer,  8  Minn.  413,  this  case  was  cited  approvingly,  but  it  appeared 
that  the  purchaser  was  aware  of  the  prior  conveyance.  A  contrary  decision  upon 
similar  facts  will  be  found  in  Banks  v.  Ammon,  27  Pa.  St.  172.  Of  course,  the 
mere  conveyance  with  covenants  of  warranty,  in  the  absence  of  concealment  or 
misrepresentation  of  the  state  of  the  title,  is  not  of  itself  a  sufficient  fraudulent 
representation  to  vitiate  the  transaction.  Merriman  v.  Norman,  9  Heisk.  (Tenn.) 
270,  criticising  Gwinther  v.  Gerding,  3  Head  (Tenn.),  198.  If  the  vendor  sup- 
presses the  fact  that  his  wife  is  living,  so  as  to  induce  the  purchaser  to  accept  a 
conveyance  without  a  release  of  her  contingent  right  of  dower,  he  is  guilty  of 
fraud.  Shiffer  v.  Dietz,  83  N.  Y.  300;  S.  C.,  53  How.  Pr.  (N.  Y.)  872.  So,  also, 
where  he  alters  the  abstract  of  title  so  as  to  conceal  an  incumbrance  on  the  land. 
Knowlton  v.  Amy,  47  Mich.  204.  The  fact  that  the  seller  fails  to  deny,  in  conver- 
sation with  the  purchaser,  the  charge  that  he  has  concealed  an  incumbrance  on 
the  property,  is  not  sufficient  evidence  of  fraud  on  his  part.  Halls  v.  Thompson, 
1  Sm.  &  M.  (Miss.)  443.  The  encroachment  of  an  adjoining  lot  upon  that  sold, 
known  to  the  vendor  but  not  mentioned  in  the  particulars  of  sale,  is  a  suppres- 


240  MARKETABLE  TITLE  TO  REAL  ESTATE. 

suppress  the  truth  as  it  is  to  utter  a  falsehood.1  The  question, 
what  facts  the  seller  must  disclose,  is  capable  of  much  refinement. 
Obviously  it  cannot  be  determined  by  any  precise  rule.  In  every 
case  that  arises  the  question  is  one  of  fact  to  be  solved  by  all  the 
circumstances  which  surround  the  transaction,2  among  which,  per- 
haps, the  most  important  are  the  relations  of  trust  and  confidence 
which  the  parties  bear  to  each  other,  and  the  inequalities  in  their 
respective  business  capacities,  or  opportunities  for  information 
respecting  the  title.  Thus,  it  has  been  held,  that  if  the  vendor  is 
a  resident  of  the  locality  where  the  sale  is  made,  and  is  aware 
that  certain  existing  facts  render  the  title  invalid  under  the  laws 
there  in  force,  he  is  bound  to  disclose  those  facts  to  the  purchaser 
if  he  is  a  stranger,  though  they  might  be  discovered  by  an  exam- 
ination of  the  records.3  On  the  other  hand,  it  has  been  held  that 
the  vendor  is  under  no  obligation  to  disclose  the  existence  of  un- 
opened streets  and  such  like  easements  affecting  the  premises  sold, 
when  the  facts  respecting  them  appear  from  the  plats  and  records 
in  the  public  offices,  and  he  has  reason  to  believe  that  the  pur- 
chaser has  equal  knowledge  with  himself  upon  the  subject,4  nor  to 
\  disclose  the  fact  that  his  title  is  equitable  only,  the  legal  title 
'  being  outstanding  in  another,  |£heT)ein  a  situation  to  compel  a 
conveyance  of  the  legal  title;  or  if  the  circumstances  of  the  case 
be  such  that  he  is  entitled  to  time  in  which  to  perfect  the  title.6 
As  a  general  rule  it  may  be  said  that  the  vendor  is  bound  to  dis- 
close all  facts  material  to  the  title  of  which  he  is  informed.  A 
title  which  upon  the  face  of  the  vendor's  title  deeds,  or  the  public 
records,  appears  complete  and  perfect,  may  in  fact  be  utterly 
worthless,  as  where  the  estate  is  held  pur  outre  vie,  and,  at  the 
time  of  the  contract  between  the  vendor  and  purchaser,  the  cestui 
que  vie  is  dead,  or  in  any  case  in  which  the  vendor's  title  is  liable  to 
be  defeated  upon  the  happening  of  a  particular  event.  In  all  such 
cases  the  vendor  is  guilty  of  fraud  if  he  conceals  from  the  pur- 

sion  of  a  material  fact  entitling  the  purchaser  to  relief.  King  v.  Knapp,  59  N. 
Y.  462.  It  is  fraud  in  the  vendor  to  execute  a  title  bond  knowing  that  he  has  no 
title,  legal  or  equitable.  Mullins  v.  Jones,  1  Head  (Tenn.),  517.  It  is  fraud  in 
executor  to  sell  land  belonging  to  the  estate,  if  the  will  confers  no  authority 
for  that  purpose.  Woods  v.  North,  6  Humph.  (Tenn.)  308;  44  Am.  Dec.  312. 

'Lockridge  v.  Foster,  4  Scam.    (111.)    569. 

'Bean  v.  Herrick,  12  Me.  262;  28  Am.  Dec.  176. 

3  Babcock  v.  Case,  61  Pa.  St.  427 ;  100  Am.  Dec.  654.  Moreland  v.  Atchison, 
19  Tex.  303.,  311. 

•Wagner  v.  Perry,  47  Hun  (N.  Y.)  516. 

•Provident  L.  &  Tr.  Co.  v.  Mclntosh,   (Kans.)   75  Pac.  498. 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  241 

chaser  a  fact  which  defeats  or  lessens  the  value  of  his  title.1  It 
has  been  said  that  if  the  purchaser  accepts  the  estate  subject  to  all 
faults,  and  the  vendor  knows  of  a  latent  defect  which  the  pur- 
chaser could  not  discover,  there  is  a  question  as  to  whether  or  not 
he  is  hound  to  disclose  the  defect.  This  observation  was  made  in 
respect  to  faults  in  the  quality  of  the  estate,  but  it  would  apply  as 
well,  it  would  seem,  to  defects  in  the  title.2  It  seems  scarcely  fair 
to  apply  to  a  case  of  alleged  fraud  with  respect  to  the  title  the 
nile  which  prevails  in  a  case  of  fraudulent  representations  as  to 
the  quality  of  the  estate,  namely,  that  the  vendor  is  not  bound  to 
disclose  defects  which  He  open  to  the  observation  of  the  purchaser. 
It  is  true  that  all  defects  of  title  which  would  appear  upon  a 
thorough  examination  of  the  title  may  be  said  to  be,  in  a  certain 
sonse,  open  to  the  observation  of  the  purchaser.  But  it  is  well 
known  that  an  examination  of  the  title  is  a  serious  matter,  involv- 
ing much  labor  and  delay,  and  is  frequently  dispensed  with  upon 
the  assurances  of  the  vendor  that  his  title  is  perfect.  Whether 
the  estate  consists  of  fertile  lands  or  sterile  lands,  uplands  or 
meadows,  productive  or  non-productive  mines,  can  be  determined 
by  any  man  of  ordinary  capacity;  but  whether  the  record  shows  a 
clear  title,  is  a  fact  that  few  purchasers  can  ascertain  without  pro- 
fessional assistance  and  much  expense.  Whether  the  vendor  is 
bound  to  disclose  that  his  title  has  been  questioned  or  doubted 
does  not  appear.  But  it,  has  been  held  that  if  the  validity  of  the 
title  depends  upon  a  particular  fact,  and  the  vendor  knows  that 
such  fact  exists,  no  duty  devolves  upon  him  to  disclose  to  the 
purchaser  that  the  existence  of  such  fact  had  ever  been  questioned. 
Thus,  where  a  son  placed  money  in  the  hands  of  his  father  with 
which  to  buy  lands  for  him  (the  son),  and  the  father  died  before 
a  conveyance  was  executed,  and  the  vendor  required  indemnity 
against  any  future  claim  by  the  heirs  of  the  father  before  he 
would  convey  the  land  to  the  son,  it  was  held  that  the  son  was  not 
obliged  to  disclose  to  his  vendee  the  fact  that  such  indemnity  had 
been  required  and  given.3  This  case,  however,  scarcely  goes  the 
length  of  deciding  that  the  vendor  is  under  no  obligation  to  dis- 
close facts  which  render  the  title  merely  doubtful,  and  not 
absolutely  bad. 

'Sugcl.  Vend.   (8th  Am.  ed.)    9.     Edwards  v.  McLeay,  Coop.  312. 

-  1  Sugd.  Vend.  (8th  Am.  ed.)  2,  9.  Jones  v.  Keen,  2  Moo.  <t  R.  348.  Ward 
v.  Wiman,  17  Wend.  (N.  Y.)  193,  a  case  in  which  the  land  supposed  to  have 
been  sold  did  not  exist. 

'Farrell  v.  Lloyd,  69  Pa.  St.  239,  248. 
16 


242  MABKETABLE  TITLE  TO  REAL  ESTATE. 

§  103.  Wilful  or  careless  assertions.  The  vendor  is  guilty  of 
fraud  if  he  makes  an  assertion  of  fact  in  regard  to  the  title  which 
he  knows  to  be  false,  or  which  he  has  no  reason  to  believe  to  be 
true,  and  which  is  in  fact  untrue.1  It  is  a  sufficient  proof  of  fraud, 
as  a  general  rule,  to  show  that  the  vendor's  representations  are 
false,  and  that  he  had  knowledge  of  facts  contrary  to  his  representa- 
tions.3 There  are  cases  which  hold  that  the  representations  of  the 
vendor  as  to  title  may  not  be  fraudulent  in  law,  though  exception- 
able in  point  of  morals,  as  where  he  makes  untrue  statements 
in  regard  to  a  fact  concerning  which  the  purchaser  has  the  same 
opportunity  and  means  of  information  as  he.8  It  must  be  admitted 
that  these  decisions  stand  upon  very  debatable  ground,  and  that  the 
courts  should  be  slow  to  condone  fraud  on  the  part  of  the  vendor 
under  any  circumstances,  especially  where  it  consists  of  a  positive 
averment,  and  not  a  mere  suppression  of  the  truth.  A  mere  cove- 
nant that  the  grantor  is  seized  in  fee  is  not  of  itself  a  fraudulent 
representation  if  he  has  no  title.4 

§  104.  Defects  which  appear  of  record.  The  vendor  is  not 
necessarily  guilty  of  fraud  in  failing  to  call  the  attention  of  the  pur- 

1  Hinkle  v.  Margerum,  50  Ind.  242 ;  Strong  v.  Downing,  34  Ind.  300 ;  Wiley 
v.  Howard,  15  Ind.  169;  Warren  v.  Carey,  5  Ind.  319;  Fitch  v.  Polke,  7 
Blackf.  (Ind.)  564.  Herman  v.  Hall,  140  Mo.  270;  41  S.  W.  733.  If  the  ven- 
dor positively  affirm,  as  of  his  own  knowledge,  that  the  title  is  good,  without 
knowing  whether  it  is  in  fact  good,  he  will  be  deemed  guilty  of  fraud  if  the 
title  is  in  fact  bad.  Barnes  v.  Union  Pac.  R.  Co.,  54  Fed.  Rep.  87 ;  12  U.  S.  App.  1. 

2 1  Sugd.  Vend.  (8th  Am.  ed.)  5.  Burrowes  v.  Locke,  10  Ves.  470;  Lake  v. 
Brutton,  8  De  G.,  M.  &  G.  449. 

'Yeates  v.  Pryor,  11  Ark.  66,  the  court,  by  WALKEB,  J.,  saying:  "It  is  not 
every  representation  of  the  vendor  in  regard  to  the  property  sold  which  will 
amount  to  fraud,  be  it  ever  so  exceptionable  in  point  of  morals.  The  misrepre- 
sentation, in  order  to  affect  the  validity  of  the  contract,  must  relate  to  some  mat- 
ter of  inducement  to  the  making  of  the  contract  in  which,  from  the  relative  posi- 
tion of  the  parties  and  their  means  of  information,  the  one  must  necessarily  be 
presumed  to  contract  upon  the  faith  and  trust  which  he  reposes  in  the  represen- 
tations of  the  other  on  account  of  his  superior  information  and  knowledge  in 
regard  to  the  subject  of  the  contract;  for  if  the  means  of  information  are  alike 
accessible  to  both,  so  that  with  ordinary  prudence  or  vigilance  the  parties 
might  respectively  rely  upon  their  own  judgment,  they  must  have  been  pre- 
sumed to  have  done  so;  or,  if  they  have  not  so  informed  themselves,  must 
abide  the  consequences  of  their  own  inattention  and  carelessness."  In  this 
case  fraud  on  the  part  of  the  vendor  was  alleged,  both  in  respect  to  the  value 
of  the  property  and  state  of  the  title. 

'Decker  v.  Schulze,   (Wash.)   39  Pac.  Rep.  261.     Ante,  §  102,  n. 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  243 

chaser  to  a  defect  of  title  or  an  incumbrance  which  appears  of 
record,  or  which  appears  on  the  face  of  the  instruments  evidencing 
the  vendor's  title.1  This  is  analogous  to  the  rule  that  the  vendor 
need  not  call  the  attention  of  the  purchaser  to  defects  in  the  qualitv 
of  the  estate  which  are  fully  open  to  his  observation.  But  the 
vendor  will  be  guilty  of  fraud  if  he  induce  the  purchaser  to  forego 
an  examination  of  the  title  in  order  that  his  attention  may  not  be 

1  Turner  v.  Harvey,  Jac.  178.  Ward  v.  Packard,  18  Cal.  391.  Richardson  v. 
Boright,  9  Vt .  368.  The  cases  which  hold  that  the  vendor  is  not  guilty  of  fraud 
in  failing  to  disclose  an  incumbrance  apparent  of  record  proceed  largely  upon  the 
hypothesis  that  the  purchaser  has  himself  examined  the  record,  l§  aware  of  the 
incumbrance,  and  tacitly  purchases  subject  thereto,  and  that  he  has  taken  the 
incumbrance  into  consideration  in  determining  the  price  he  will  pay  for  the 
property.  Ward  v.  Packard,  supra,  citing  Story  Eq.  §  208.  It  is  hardly  to  be 
supposed  that  a  business  man,  knowing  of  an  incumbrance,  would  purchase  with- 
out mentioning  the  fact  for  the  purpose  of  obtaining  the  property  at  the  lowest 
figure.  The  other  principal  ground  of  such  decisions,  namely,  that  the  pur- 
chaser is  guilty  of  laches  in  failing  to  examine  the  title  and  must  suffer  the  con- 
sequences wou/d  seem  better  founded  in  reason,  though  it  has  not  passed  with- 
out attack.  Cullum  v.  Branch  Bank,  4  Ala.  Burwell  v.  Jackson,  oSeld.  (N.  Y.) 
545.  Keifer  v.  Rogers,  19  Minn.  32.  Pryse  v.  McGuire,  81  Ky.  608.  "  It 
would  be  the  grossest  injustice  to  infer  fraud  upon  the  mere  silence  of  a  vendor 
as  to  the  existence  of  an  incumbrance  where  the  abstract  of  title  Is  sufficient  to 
put  the  purchaser  on  inquiry."  Steele  v.  Einkle,  3  Ala.  352.  The  cage  of 
Griffith  v.  Kempshall,  Clarke  Ch.  (N.  Y.)  571,  has  gone  as  far,  perhaps,  as  any 
other  in  support  of  the  proposition  that  in  a  case  of  fraud  by  the  vendor  the  pur- 
chaser is  chargeable  with  laches  in  failing  to  examine  the  records,  where  such 
examination  would  have  disclosed  the  fraud.  The  sale  was  at  auction,  the 
vendor  declaring  with  knowledge  to  the  contrary  that  there  were  no  incum- 
brances  on  the  property.  A  most  important  element  of  this  decision,  however, 
was  that  after  time  given  for  examining  the  title  the  purchaser  had  accepted  a  con- 
veyance with  general  warranty,  and  that  the  vendor's  fraud  had  been  merged  in 
the  conveyance.  It  is  not  easy  to  reconcile  this  decision  with  the  rule  that  the 
contract  will  be  vitiated  if  the  vendor  make  definite  statements  for  the  purpose  of 
preventing  inquiries  by  the  purchaser  which  would  disclose  the  fraud.  In  Tallman 
v.  Green,  3  Sandf.  (N.  Y.)  487,  it  was  held  that  false  representations  as  to  the  title 
are  no  ground  for  rescission  when  the  record  shows  the  true  state  of  the  title,  since 
the  facts  falsely  represented  must  be  such  as  the  grantee  could  not  know  to  be 
untrue.  It  does  not  appear  that  the  vendor  in  this  case  knew  that  his  representa- 
tions were  false.  The  purchaser  was  left  to  his  remedy  at  law  on  the  vendor's 
covenants.  In  Andrus  v.  St.  Louis,  130  U.  8.  643,  it  was  held  that  a  purchaser 
was  guilty  of  laches  in  failing  to  inspect  the  premises,  by  which  he  would  have 
discovered  an  adverse  claimant  in  possession. 


244  MARKETABLE  TITLE  TO  REAL  ESTATE. 

brought  to  such  defects  ; l  or  if  he  occupies  such  a  confidential  rela- 
tion to  the  purchaser  that  by  reason  of  such  relation  the  latter  is 
induced  to  forego  an  examination  of  the  title.2  In  either  case  the 
same  principle  is  applied  as  that  upon  which  the  vendor  is  held 
guilty  of  fraud  in  actively  concealing  latent  defects  in  the  quality  of 
the  estate.  In  every  sale  of  lands  there  is  an  implied  contract  that 
the  vendor  has  an  indefeasible  title,  unless  the  contrary  is  expressed;3 
hence,  in  every  case  in  which  the  purchaser  enters  into  the  contract 
without  making  an  examination  or  requiring  an  abstract  of  the  title, 
it  would  seem  fair  to.  assume  that  he  did  so  relying  upon  the  obliga- 
tion of  the  vendor  to  disclose  any  defect  in  his  title.  Where  the 
vendor  knows  there  is  a  defect  in  the  title,  and  knows  also  that  the 
purchaser  intends  to  dispense  with  an  abstract  or  examination  of  the 

'2  Warvelle  Vend.  844.  Richardson  v.  Boright,  9  Vt.  368.  Corbett  v. 
McGregor,  (Tex.  Civ.  App. )  84  S.  W.  278.  If  the  purchaser  refrains  from 
examining  the  title  by  reason  of  the  vendor's  representation  that  the  title  is 
good,  he  will  be  relieved  if  the  title  is  bad.  Bailey  v.  Smock,  61  Mo.  213.  But 
if  he  is  not  influenced  by  the  vendor  in  failing  to  examine  the  title,  he  will  not 
be  relieved  on  the  ground  of  fraud.  Patten  v.  Stewart,  24  Ind.  332,  342,  semble. 

•  Babcock  v.  Case,  61  Pa.  St.  430;  100  Am.  Dec.  454.  Hunt  v.  Moore,  2  Pa. 
St.  107,  where  the  vendor  was  an  executor  and  man  of  affairs,  and  the  vendee  a 
devisee  of  the  vendor's  testator,  and  a  woman  of  weak  intellect  much  under  the 
executor's  influence.  Rimer  v.  Dugan,  39  Miss.  477;  77  Am.  Dec.  687.  In  Bab- 
cock  v.  Case,  61  Pa.  St.  427;  100  Am.  Dec.  454,  it  appeared  that  the  vendor  held 
a  tax  deed,  and  represented  to  the  purchaser  that  he  had  examined  the  title  and 
found  it  good.  The  purchaser,  saying  that  he  would  take  the  vendor's  word  for 
it,  bought  the  land  without  examining  the  title.  It  did  not  affirmatively  appear 
that  the  vendor  was  aware  of  the  facts  vitiating  the  title,  but  the  court  held  that 
there  was  a  relation  of  trust  and  confidence  between  the  parties,  and  that,  having 
undertaken  to  state  the  facts  truly,  his  ignorance  of  them  would  not  redeem  a 
falsehood  in  regard  to  them,  in  any  material  respect,  from  being  a  fraud  which 
would  avoid  the  contract.  If  the  vendor  prevents  the  vendee  from  examining 
the  records  by  assurances  that  the  title  is  perfect  and  the  property  free  from 
incumbrances,  a  case  of  special  confidence  is  established  and  the  vendee  is  not 
chargeable  with  neglect  in  failing  to  examine  the  title.  Bailey  v.  Smock,  61  Mo. 
217.  That  a  vendor  is  not  bound  to  inform  the  purchaser  of  the  existence  of  a 
judgment  lien  or  other  incuiubrance  on  the  premises  which  may  be  easily  dis- 
covered by  an  examination  of  the  public  records,  is  doubtless  true  if  the 
parties  are  dealing  at  arm's  length,  but  it  is  believed  that  a  court  of  equity  would 
lay  hold  on  slight  circumstances  to  establish  a  relation  of  trust  and  confidence 
between  the  buyer  and  seller,  and  to  charge  the  latter  with  an  abuse  of  that 
confidence. 

1  Bui-well  v.  Jackson,  5  Seld.  (N.  Y.)  535.  In  Crawford  v.  Keebler,  5  Lea 
(Tenn.),  547,  where  the  vendor  failed  to  inform  the  purchaser  of  a  suit  to  enforce 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  245 

title,  it  is  no  more  than  fair  to  give  to  the  silence  of  the  vendor 
under  such  circumstances  the  effect  of  an  express  representation 
that  the  title  is  unimpeachable.  Of  course  a  misrepresentation  as 
to  a  fact  affecting  the  title  not  apparent  of  record,  such  as  the  fact 
of  inheritance  or  the  like,  will  fix  the  vendor  with  fraud.1 

There  is  undoubtedly  a  conflict  of  authority  as  to  the  duty  of  the 
vendor  to  disclose  defects  of  title  which  the  purchaser  might  dis- 
cover by  an  examination  of  the  records.  There  are  cases  which  hold 
that  the  vendor  is  liable,  if,  knowing  of  a  defect  or  iucurabrance,  he 
fails  to  disclose  it,2  others,  that  he  is  liable  if  he  assert  that  the  title 
is  good,  when  he  knows  that  the  records  show  it  to  be  defective  ;  * 

a  prior  vendor's  lien  upon  the  land,  it  was  said  that  the  mere  fact  of  a  want  of 
title  known  to  the  vendor  and  not  communicated  to  the  vendee,  is  a  fraud  upon 
him,  for  which  he  may  resist  the  payment  of  the  purchase  money.  See,  also, 
Prout  v.  Roberts,  32  Ala.  427.  Crutchfield  v.  Danilly,  16  Ga.  432. 

1  Hammers  v.  Hanrick.  69  Tex.  412 ;  7  S.  W.  Rep.  345. 

1  Cullum  v.  Branch  Bank,  4  Ala.  21;  37  Am.  Dec.  725.  Burwell  v.  Jackson,  5  Seld. 
(N.Y.)535.  Here  there  was  no  representation  whatever  by  the  vendor  as  to  the 
sufficiency  of  his  title,  unless  the  agreement  to  make  "a  good  and  sufficient  con- 
veyance "  could  be  considered  such.  In  Prout  v.  Roberts,  32  Ala.  427,  the  rule  was 
:nus  broadly  stated  by  STONE,  J:  "A  vendor  who  conceals  from  his  vendee  a 
known  and  material  defect  in  or  incumbrance  on  his  title,  and  thereby  induces 
him  to  purchase,  is  guilty  of  a  fraud  for  which  the  vendee  may  claim  a  rescission 
of  the  contract,"  citing  Cullum  v.  Br.  Bank,  supra,  Harris  v.  Carter,  3  Stew. 
(Ala.)  233;  Greenlee  v.  Gaines,  13  Ala.  198;  48  Am.  Dec.  49 ;  Bonham  v.  Walton, 
24  Ala.  513 ;  Foster  v.  Gressett,  29  Ala.  393 ;  Lanier  v.  Hill,  2o  Ala.  554 ;  McLe- 
more  v.  Mabson,  20  Ala.  137.  To  the  same  effect  see  Johnson  v.  Pryor,  5 
Hayw.  (Tenn.)  243;  Crawford  v.  Keebler,  5  Lea  (Tenn.),  547;  Nicol  v.  Nicol,  4 
Baxt.  (Tenn.)  145;  Napier  v.  Elam,  6  Yerg.  (Tenn.)  108.  In  Cullum  v.  Branch 
Bank,  supra,  the  court  said:  "It  cannot  be  denied  that  the  (purchaser)  was  in 
error  in  not  making  an  examination  of  the  register,  and  also  in  not  ascertaining 
from  the  previous  vendor  whether  he  pretended  to  any  lien.  But  this  does  not 
exculpate  the  vendor.  *  *  *  By  offering  to  sell  the  estate,  the  vendor  virtu- 
ally represents  it  as  not  incumbered  by  himself.or  if  incumbered  that  he  will  free 
it  before  the  sale  is  executed ;  and  if  he  wishes  to  discharge  himself  from  the 
consequences  of  this  implied  representation,  it  lies  with  him  to  show  that  the 
purchaser  was  informed,  or  otherwise  knew  of  the  incumbrance."  Citing  Har- 
ding v.  Nelthorpe,  Nelson.  118.  Cater  v.  Pembroke,  2  Bro.  C.  C.  281.  In  Ken- 
nedy v.  Johnson,  2  Bibb  (Ky.),  12;  4  Am.  Dec.  666,  a  case  in  which  the  vendor 
failed  to  disclose  the  priority  of  his  grant  to  a  purchaser  who  believed  he  was 
acquiring  the  elder  legal  title,  the  contract  was  rescinded  at  the  suit  of  the  pur- 
chaser, though  the  land  records  showed  the  defect. 

•The  rule  that  the  purchaser  is  chargeable  with  laches  in  failing  to  examine. 


246  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

and  lastly,  eases  which  hold  that  the  purchaser  has  no  right  to  rely 
on  the  vendor's  representation  that  the  title  is  good,  in  any  case, 
but  should  satisfy  himself  by  an  examination  of  the  records.1 
Both  upon  principle  and  authority  it  would  seem  that  the  second 
class  of  cases  establishes  the  true  rule.  It  is  inconceivable  that 
the  vendor,  knowing  his  title  to  be  bad,  should  declare  it  to  be 
good  for  any  purpose  other  than  to  induce  the  purchaser  to  accept 
it  without  examination.  There  can  be  no  doubt  that  in  morals 
the  vendor  is  guilty  of  fraud.  And  when  it  is  sought  in  law  to 
visit  upon  him  the  consequences  of  his  fraud,  the  vendor  should 
not  be  allowed  to  answer,  that  if  due  diligence  had  been  exercised, 
his  fraud  would  have  been  discovered  and  avoided.2  If  the  rights 

the  title  does  not  apply  where  the  vendor,  knowing  the  title  to  be  defective,  rep- 
resents that  it  is  good.  It  does  not  lie  in  the  mouth  of  the  vendor  to  say  that  his 
falsehoods  respecting  the  title  might  have  been  discovered  by  the  purchaser  if 
lie  had  used  due  diligence  and  caution  in  examining  the  public  records.  Pryse 
v.  McGuire,  81  Ky.  608;  Young  v.  Hopkins,  6  Mon.  (Ky.)  23;  Campbell  v. 
Whittingham,  5  J.  J.  Marsh.  (Ky.)  96;  20  Am.  Dec.  241.  Kiefer  v.  Rogers, 
19  Minn.  32.  Topp  v.  White,  12  Heisk.  (Tenn.)  165;  Napier  v.  Elam,  6  Yerg. 
(Tenn.)  108;  Ingram  v.  Morgan,  4  Humph.  (Tenn.)  66;  40  Am.  Dec.  626. 
Riley  v.  Bell,  120  Iowa,  618;  95  N.  W.  170;  Muller  v.  Palmer,  144  Cal.  305;  77 
Pac.  954.  The  vendor  is  estopped  from  asserting  that  the  purchaser  might  have 
ascertained  the  truth  by  examining  the  public  records.  Wilson  v.  Higbee,  62 
Fed.  Rep.  723.  (Contra,  Williams  v.  Thomas,  7  Kulp.  (Pa.  Com.  PI.)  371.) 

1  Griffith  v.  Kempshall,  Clarke  Ch.  ( N.  Y. )  571.  See  notice  of  this  case,  p.  241. 
It  is  believed  that,  in  most  of  the  instances  in  which  the  purchaser  has  been 
denied  relief  in  cases  of  fraud  on  the  ground  that  due  diligence  in  examining  the 
records  would  have  shown  the  true  state  of  the  title,  there  was  no  attempt  on  the 
part  of  the  vendor  to  fraudulently  conceal  the  facts.  To  state,  with  knowledge  to 
the  contrary,  that  the  record  showed  no  defects  would,  of  course,  be  such  an  at- 
tempt. Pryse  v.  McGuire,  81  Ky.  608.  In  Kerr  v.  Kitchen,  7  Pa.  St.  486,  the  head 
note  states  that  "  fraudulent  concealment  of  defects  cannot  be  imputed  when 
they  appear  from  deeds  on  record."  The  case  does  not  support  the  head  note. 
There  was  no  evidence  that  any  concealment  of  the  state  of  the  title  was  at- 
tempted. The  parties  acted  under  a  mistake  as  to  the  legal  effect  of  an  instru- 
ment affecting  the  title.  In  Wagner  v.  Perry,  47  Hun  (N.  Y.),  516,  it  was 
lield  that  the  purchaser  is  not  guilty  of  fraud  in  failing  to  state  facts  affect- 
ing the  title  disclosed  by  the  records,  so  long  as  he  makes  no  effort  to  conceal 
those  facts.  The  rule  stated  in  Sugden  on  Vendors,  246,  that  if  the  false 
statement  could  not  be  discovered  from  the  abstract,  the  purchaser  will  be 
relieved,  can  scarcely  be  considered  authority  for  denying  relief  to  a  pur- 
chaser who  might  have  discovered  the  vendor's  fraud  (not  mistake)  by  exam- 
ining the  title,  there  being  obviously  a  wide  difference  between  a  case  in  which 
the  vendor  furnishes  an  abstract  which  shows  a  defect  in  his  title,  and  one  in 
which  he  induces  the  purchaser  to  forego  an  examination  of  the  title  by 
assuring  him  that  it  is  clear  and  unincumbered. 

1 "  No  man  can  complain  that  another  has  relied  too  implicitly  on  the  truth 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  247 

of  a  stranger  should  be  impaired  by  such  want  of  diligence,  the 
purchaser  might  be  precluded  in  his  behalf,  but  as  between  vendor 
and  vendee,  the  doctrine  of  notice  from  the  record  can  have  no 
application  in  a  case  of  positive  fraud  on  the  part  of  the  former 
with  respect  to  the  title.1 

If  the  vendor  make  a  false  statement  as  to  any  specific  fact 
affecting  the  title,  for  example,  if  he  knowingly  and  falsely  states 
that  there  is  no  incumbrance  on  the  property,  the  mere  fact  that 
the  purchaser  might  have  found  the  incumbrance  by  examining 
the  public  records,  will  not  relieve  the  vendor  from  the  conse- 
quences of  his  fraud.2 

of  what  he  himself  stated."  Kerr  on  Fraud,  80.  Brown  v.  Rice,  26  Grat.  (Va.) 
473.  "  When  once  it  is  established  that  there  has  been  any  fraudulent  misrep- 
resentations or  willful  concealment  by  which  a  person  has  been  induced  to 
enter  into  a  contract,  it  is  no  answer  to  his  claim  to  be  relieved  from  it  to  tell 
him  that  he  might  have  known  the  truth  by  proper  inquiry.  He  has  a  right  to 
retort  upon  his  objector,  '  You,  at  least,  who  have  stated  what  is  untrue,  or 
have  concealed  the  truth  for  the  purpose  of  drawing  me  into  a  contract,  can- 
not accuse  me  of  want  of  caution,  because  I  relied  implicitly  on  your  fairness 
nnd  honesty.'  "  Language  of  Lord  CHELMSFORD  cited  in  Hull  v.  Field,  76  Va. 
607.  In  Upshaw  v.  Debow,  7  Bush  (Ky.),  447,  it  was  held  that  the  purchaser 
was  not  bound  to  examine  the  vendor's  title  papers,  and  might  rely  on  his 
statements  as  to  the  title.  And  in  Young  v.  Hopkins,  6  T.  M.  Mon.  (Ky.)  23, 
it  was  declared  a  bad  defense  to  say  that  the  purchaser  might  have  discovered 
the  vendor's  falsehoods  by  using  due  diligence. 

1  Parham  v.  Randolph,  4  How.  (Miss.)  451;  35  Am.  Dec.  403.  Hunt  v.  Moore, 
2  Pa.  St.  107.  Campbell  v.  Whittingham,  5  J.  J.  Marsh.  (Ky.)  96;  20  Am.  Dec. 
241.  But  see  Richardson  v.  Boright,  9  Vt.  368,  and  the  intimation  of  BREWER, 
J.,  in  Clagett  v.  Crall,  12  Kans.  397.  The  reasons  for  this  proposition  were 
forcibly  stated  by  the  court  in  Burwell  v.  Jackson,  5  Seld.  ( N.  Y. )  545,  as  follows : 
"  A  vendee  can  never  be  bound,  as  between  him  and  the  vendor,  to  search  the 
record  for  defects  of  title.  The  protection  of  vendors  from  the  consequences  of 
agreeing  to  sell  that  which  they  do  not  own  constitutes  no  part  of  the  object  of 
the  recording  acts ;  nor  is  it  any  answer  to  a  'warranty,  either  express  or  implied, 
that  the  purchaser  might  by  inquiry  have  ascertained  it  to  be  false.  The  reason 
why  the  implied  warranty  ceases  upon  the  consummation  of  the  contract  of  sale 
by  the  execution  of  a  deed  is  not  that  the  vendee  is  presumed  to  have  investigated 
the  title  and  discovered  the  defects,  if  any  there  be,  but  that  it  is  reasonable  to 
require  the  vendee  in  taking  a  deed,  which  is  a  more  solemn  and  deliberate  act 
than  entering  into  a  preliminary  agreement  for  the  purchase,  to  protect  himself 
by  an  express  warranty."  A  purchaser  is  not  charged  with  notice  of  facts  which 
come  to  the  knowledge  of  his  attorney  in  the  examination,  nor  put  upon  inquiry 
by  the  contents  of  a  deed  in  his  chain  of  title,  as  between  himself  and  the  vendor. 
The  doctrine  of  constructive  notice  from  these  sources  is  only  applied  for  the 
protection  of  third  persons  against  the  claims  of  subsequent  purchasers. 
Champlin  v.  Laytin,  6  Paige  Ch.  (N.  Y.)  189;  .31  Am.  Dec.  382. 

'Blumenfeld  v.  Stine,  87  N.  Y.  Supp.  81;  42  Misc.  411. 


248  MARKETABLE  TITLE   TO  REAL  ESTATE. 

It  has  been  held  that  a  purchaser  is  not  guilty  of  laches  in  rely- 
ing upon  innocent  misrepresentations  of  the  vendor  as  to  the  title, 
and  that  as  a  general  rule,  evidence  which  is  sufficient  to  establish 
innocence  of  intentional  misrepresentation  on  the  part  of  the 
vendor  will  relieve  the  purchaser  of  the  imputation  of  laches  in 
failing  to  examine  the  title.1  The  English  rule  upon  this  question 
has  been  thus  stated :  "  If  the  vendor  sells  with  knowledge  of  a 
defect  in  the  title  to  part  of  the  estate  material  to  the  enjoyment 
of  the  rest,  and  does  not  disclose  the  fact  to  the  purchaser,  and  it 
cannot  be  collected  from  the  abstract,  the  purchaser  will  be  entitled 
to  have  the  contract  rescinded.2  The  same  rule  would  apply  in 
America,  it  is  apprehended,  in  all  cases  in  which  an  abstract  of 
the  title  is  furnished  by  the  vendor.*  He  would  not  be  deemed 
guilty  of  fraud  in  failing  to  call  the  attention  of  the  purchaser 
to  a  defect  of  title  plainly  disclosed  by  the  abstract.  But  in  the 
application  of  the  English  rule  to  American  cases  care  should  be 
taken  to  distinguish  between  the  abstract  of  title  and  the  public 
registry  of  conveyances,  incumbrances,  etc.,  generally  existing  in 
American  States.  It  would  seem  scarcely  just  to  the  purchaser 
to  give  to  the  public  registry  the  effect  of  an  abstract  of  title,  a 
document  usually  submitted  to  the  scrutiny  of  counsel,  and  so 
prepared  that  a  defect  thence  appearing  could  hardly  escape  the 
attention  of  the  purchaser  or  his  counsel,  except  in  a  case  of  gross 
negligence  or  incompetence.  It  is  convenient  to  note  here  the 
differences  between  the  English  and  American  sources  of  infor- 
mation respecting  the  title.  In  England  there  is  no  general  regis- 
try of  title  deeds  such  as  exists  in  America;  consequently,  when 
a  title  is  examined  there,  the  vendor  must  produce  all  the  deeds 
or  other  documents  in  his  possession  relating  to  the  title,  and  sub- 
mit them  to  the  inspection  of  the  purchaser,  or  furnish  the  pur- 
chaser with  an  epitome  or  abstract  of  their  essential  parts.  This 
is  sometimes  done  in  America,  but  the  abstract,  owing  to  the 
expense  attending  its  preparation,  is  frequently  dispensed  with, 
especially  in  rural  communities,  and  the  purchaser  contents  him- 
self with  an  examination  of  the  registered  copies  of  the  vendor's 
title  deeds,  either  in  person  or  by  counsel.  The  facility  with 
which  this  may  be  done  has  led  to  the  disuse  of  abstracts  in  some 
sections,  and  given  rise  to  a  disposition  on  the  part  of  the  pur- 
chaser in  many  cases  to  rely  upon  lay  opinions  as  to  the  title,  and 

1  Baptiste  v.  Peters,  51  Ala.  158. 
!1  Sugd.  Vend.    (8th  Am.  ed.)   375   (246). 
.»  Bryant  T.  Boothe,  30  Ala.  311;  68  Am.  Dec.  117. 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  249 

to  accept  without  question  the  vendor's  representation  that  his 
title  is  good. 

§  105.  Existence  of  fraudulent  intent.  Innocent  misrepre- 
sentations. Representations  by  the  vendor,  to  be  fraudulent,  must 
have  been,  first,  untrue;  and,  secondly,  the  vendor  must  have 
known  them  to  be  untrue,  or  have  had  no  reason  to  believe  them 
true ;  and  the  contract  must  have  been  entered  into  in  consequence 
of  such  fraudulent  representations  in  order  to  entitle  the  pur- 
chaser to  relief.1  He  must  have  relied  upon  such  representations.2 
and  the  representations  themselves  must  have  been  in  respect  to 
some  material  thing  unknown  to  him.3  But  if  a  statement  be  in 
fact  false,  and  be  uttered  for  a  fraudulent  purpose,  which  is  in 
fact  accomplished,  it  has  the  whole  effect  of  a  fraud  in  annulling 
the  contract,  although  the  vendor  did  not  know  the  statement  to 
be  false,  but  believed  it  to  be  true.4 

While  the  vendor  may  in  some  cases  be  deemed  guilty  of  fraud 
in  making  statements  which  he  does  not  know  to  be  true,  the  mere 
fact  that  he  does  not  know  them  to  be  true  is  not,  as  a  general 
rule,  sufficient  to  fix  him  with  fraud.  There  must  be  something 
to  show  that  the  statements  were  fraudulently  made,  in  order  to 
distinguish  them  from  mere  mistake.5  It  has  been  held,  however, 
that  a  false  representation  founded  on  a  mistake  resulting  from 

1  Taylor  v.  Leith,  26  Ohio  St.  428.  Owen  v.  Pomona  L.  &  W.  Co.,  131  Cal. 
530;  63  Pac.  850;  Hoffman  v.  Kirby,  136  Cal.  26;  68  Pac.  321.  Fraud  on  the 
part  of  the  vendor  with  respect  to  the  title  cannot  exist,  unless  there  be  an 
intent  to  deceive.  Fox  v.  Haughton,  85  N.  C.  168.  This  was  the  rule,  with 
the  exception  of  the  qualification  of  the  second  clause,  declared  by  Lonl 
BROUGHAM  in  the  great  case  of  Small  v.  Atwood,  6  Cl.  &  Fin.  531.  It  is  true 
the  alleged  fraud  in  that  case  consisted  of  certain  representations  as  to  the 
value  or  productiveness  of  the  estate,  and  not  as  to  the  sufficiency  of  the  title, 
but  it  seems  that  the  rules  by  which  the  presence  of  fraud  in  the  transaction 
is  to  be  determined  are  the  same  in  either  case.  If  the  vendor  state  that  the 
title  is  free  from  incumbrances  "  to  the  best  of  his  knowledge  and  belief,"  and 
there  are  in  fact  incumbrances  on  the  property,  he  will  not  be  charged  with  fraud 
unless  he  knew  of  their  existence.  Barton  v.  Long,  (N.  J. )  14  Atl.  Rep.  568. 

1  Bond  v.  Ramsey,  89  111.  29.    Luckie  v.  McGlasson,  22  Tex.  282. 

s  Holland  v.  Anderson,  38  Mo.  55. 

4Bethell  v.  Bethell,  92  Ind.  318;  Brooks  v.  Riding,  46  Ind.  15;  Krewson  v. 
Cloud,  45  Ind.  273;  Booher  v.  Goldsborough,  44  Ind.  490;  Frenzel  v.  Miller, 
37  Ind.  1 ;  10  Am.  Rep.  62. 

"RaAvle  Covt.  (5th  ed.)  541  n.,  and  cases  cited,  few  of  wKich,  however,  in- 
volved any  question  of  fraudulent  representations  of  the  vendor  as  to  his  title. 
See  ante,  §  103,  as  to  effect  of  statements  by  the  vendor  which  he  did  not 
know  to  be  true. 


250  MARKETABLE  TITLE  TO  REAL  ESTATE. 

gross  negligence  is  a  fraud,1  as  where  the  land  sold  had  been 
included  in  a  mortgage  of  other  lands  executed  by  the  vendor, 
but  of  which,  from  careless  reading,  he  was  ignorant.2  It  is  to 
be  observed  that  the  cases  which  decide  that  a  vendor  is  not  neces- 
sarily guilty  of  fraud  in  failing  to  disclose  apparent  defects  of 
title  or  in  making  representations  in  regard  to  the  title  not  true 
in  fact,  merely  relieve  the  vendor  from  the  imputation  of  fraud, 
but  do  not  deny  the  purchaser  relief  if  entitled  thereto  upon  other 
grounds.  A  false  representation  by  the  vendor,  however  inno- 
cently made,  if  injury  follows,  gives  the  purchaser  a  right  to 
compensation3  or  rescission.4 

§  106.  Statement  of  opinion.  Mere  expressions  of  opinion  as 
to  the  sufficiency  of  the  title,  when  the  means  of  information  are 
equally  accessible  to  both  parties,  and  when  no  confidential  rela- 
tions exist  between  them,  do  not  constitute  fraud  on  the  part  of 
the  vendor.5  A  purchaser  has  no  right  to  rely  on  the  statement  of 
the  vendor  that  his  title  is  good,  \vhere  all  the  facts  are  laid 
before  him,  for  this  is  no  more  than  the  statement  of  an  opinion. 
To  constitute  fraud  the  vendor  must  falsely  state,  or  fraudulently 
conceal,  some  fact  material  to  the  title.6 

I  Smith  v.  Richards,  13  Pet.  (U.  S.)  38. 
J  Kiefer  v.  Rogers,  19  Minn.  32. 

I 1  Sugd.  Vend.  (14th  ed.)  28;  Bigelow  on  Fraud,  415.     Gunby  v.  Sluter,  44 
Md.  237.     Shackelford  v.  Hundly,  1  A.  K.  Marsh.    (Ky.)    495;    10  Am.  Dec. 
753.     Watson  v.  Baker,  71  Tex.  739;  9  S.  W.  Rep.  867. 

4  Vaughn  v.  Smith,  34  Oreg.  54;  55  Pac.  99. 

•Hume  v.  Pocock,  1  L.  R.,  Ch.  App.  379.  Smith  v.  Richards,  13  Pet.  (U.S.) 
26.  Maney  v.  Porter,  3  Humph.  (Tenn.)  309.  Glasscock  v.  Minor,  11  Mo. 
655.  Conwell  v.  Clifford,  45  Ind.  395.  Bond  v.  Ramsey,  89  111.  29.  People  v. 
Mitchell,  129  Cal.  580;  62  Pac.  118.  Where  the  purchaser  declared  that  he 
would  not  buy  a  tax  title,  and  the  vendor  answered  that  he  had  the  best  kind 
of  title,  it  was  held  that  if  the  vendor  made  such  declaration  knowing  that  he 
had  only  a  tax  title,  he  was  guilty  of  fraud.  Updike  v.  Abel,  60  Barb.  (N.  Y.) 
15.  In  a  case  of  conflicting  claims  to  property  in  which  one  claimant  em- 
ployed counsel  to  investigate  his  title,  and  offered  as  a  compromise  to  sell  that 
title  to  the  other  claimant,  it  was  held  that  the  assertions  of  the  latter  (who 
purchased)  as  to  the  validity  of  his  title  could  not  amount  to  a  fraud  on  the 
vendor.  Saltonstall  v.  Gordon,  33  Ala.  149. 

?  Conwell  v.  Clifford,  45  Ind.  393.  Fellows  v.  Evans,  33  Oreg.  30;  53  Pac. 
491.  The  mere  expression  of  an  opinion  by  the  vendor  as  to  the  goodness  of 
his  title,  in  the  course  of  trade,  when  all  the  facts  in  relation  to  the  title  are 
fully  and  fairly  disclosed,  and  when  the  vendee  agrees  to  take  the  title  at 
his  own  risk  without  recourse  on  the  vendor,  is  no  fraud  or  ground  of  relief 
to  the  purchaser  if  the  title  should  prove  bad.  The  statement  that  an  ad- 
verse claim  against  the  property  cannot  be  maintained,  is,  of  course,  a  state- 
ment of  opinion  only.  Jasper  v.  Hamilton,  3  Dana  ( Ky. ) ,  284.  But  To  state 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  251 

It  has  been  held  that  statements  of  what  is  the  law  bearing  upon 
the  sufficiency  of  the  title,  are  to  be  treated  as  statements  of 
opinion  only,  and  even  though  fraudulently  made,  afford  the  pur- 
chaser no  grounds  for  relief;  all  persons  being  presumed  to  know 
the  law.1  It  is  easy  to  see,  however,  that  the  universal  application 
of  such  a  rule  would  in  many  cases  lead  to  gross  injustice.  If  the 
parties  stand  upon  equal  ground,  and  are  dealing  at  arm's  length, 
the  rule  might  be  salutary;  but  if  there  be  such  a  disparity  in 
their  respective  positions  as  to  give  the  vendor  an  undue  advan- 
tage; e.  g.,  if  the  vendor  were  a  conveyancer,  and  the  purchaser 
an  ignorant  man,  the  latter  would  seem  entitled  to  relief. 

If  the  validity  of  the  title  depends  upon  a  question  of  law,  of 
course  the  statement  of  the  vendor  as  to  the  goodness  of  the  title 
would  be  a  mere  matter  of  opinion 'on  his  part.  But  a  statement 
that  there  are  no  incumbrances  on  the  property  would  be  a  state- 
ment of  fact,  and  if  falsely  made  would  entitle  the  purchaser  to 
relief.2  So,  also,  if  the  vendor  assert  that  the  title  is  good  when  he 

that  there  are  no  adverse  claims  against  the  property  would  obviously  be  a 
most  important  statement  of  fact,  and  if  made  with  knowledge  of  its  false- 
hood, would,  it  is  apprehended,  entitle  the  purchaser  to  relief. 

1  Fish  v.  Cleland,  33  111.  243,  where  it  was  said :  "A  representation  of  what 
the  law  will  or  will  not  permit  to  be  done  is  one  on  which  the  party  to  whom 
it  is  made  has  no  right  to  rely;  and  if  he  does  so  it  is  his  own  folly,  and  he 
cannot  ask  the  law  to  relieve  him  from  the  consequences.  The  truth  or  false- 
hood of  such  a  representation  can  be  tested  by  ordinary  vigilance  and  attention. 
It  is  an  opinion  in  regard  to  the  law  and  is  always  understood  as  such."  This 
case  was  a  suit  by  the  vendor  to  rescind  the  contract  on  account  of  the  pur- 
chaser's fraud,  but  it  is  apprehended  that  the  principle  declared  would  be 
fully  as  applicable  to  a  case  of  representation  affecting  the  title.  See,  also, 
Upton  v.  Tribilcock,  91  U.  S.  50;  approving  Fish  v.  Cleland,  supra,  and  citing 
further  Star  v.  Bennett,  5  Hill  (N.  Y.),  303;  Lewis  v.  Jones,  4  B.  &  C.  506; 
Rashall  v.  Ford,  L.  R.,  2  Eq.  750,  to  the  general  proposition  that  a  statement 
of  what  the  law  is  by  any  person,  is  a  statement  of  opinion  only. 

"Glasscock  v.  Minor,  71  Mo.  655.  Ixmcks  v.  Taylor,  23  Ind.  App.  245;  55 
N.  E.  238.  In  Jasper  v.  Hamilton,  3  Dana  (Ky.),  284,  the  court  said:  "We 
cannot  admit  that  the  expression  of  an  opinion  by  the  vendor  as  to  the 
goodness  of  his  title  in  the  course  of  trade,  when  the  vendee  agrees  to  take  it 
at  his  own  risk  without  recourse  or  responsibility  on  the  vendor,  is  such 
fraud  as  to  justify  a  rescission  of  the  contract,  if  the  title  should  prove 
inferior  to  an  adverse  interfering  claim.  If  all  the  facts  in  relation  to  his 
title  are  fairly  and  full}'  disclosed,  the  vendee  is  furnished  with  the  menns 
to  form  his  own  opinion  or  to  obtain  the  opinion  of  others,  and  if  he 


252  MARKETABLE  TITLE  TO  REAL  ESTATE. 

knows  of  a  paramount  title  outstanding  in  a  third  person.1  If  the 
vendor  states  material  facts  as  of  his  own  knowledge  and  not 
as  a  mere  matter  of  opinion,  but  of  which  he  has  no  knowledge 
whatever,  he  is  guilty  of  fraud.2  It  seems,  however,  that  there 
must  be  some  evidence  of  fraudulent  intent  on  the  part  of  the 
vendor  other  than  the  mere  want  of  knowledge  of  the  truth  of  his 
assertions.3 

If  the  vendor  make  definite  statements  for  the  purpose  of  pre- 
venting the  purchaser  from  making  inquiries  which  would  have 
shown  his  representations  to  be  false,  he  is  guilty  of  fraud,  and  the 
contract  may  be  rescinded,  or  an  action  for  damages  maintained  by 
the  purchaser,4  as,  where  the  vendor  falsely  states  the  amount  of 
liens  on  his  property.5  This  rulq,  carried  to  its  furthest  extent,  must 
neutralize  those  decisions  which  hold  that  the  purchaser  is  not 
entitled  to  relief  where  he  has  the  "  means  of  knowing,"  or  "  suf- 
ficient means  of  knowing,"  the  falsity  of  the  vendor's  representa- 
tions at  the  time  they  were  made,  since  it  is  inconceivable  that  a 
vendor  would  make  a  false  statement  respecting  the  title  for  any 
purpose  other  than  to  prevent  an  examination  of  the  title  by  the 

fails  to  do  so  and  purchases  without  recourse,  it  is  his  own  folly  and  he  has  no 
just  ground  to  complain.  Whether  a  title  is  paramount  and  superior  to  an 
adverse  conflicting  claim  is  a  question  of  law  often  of  the  most  abstruse  and 
critical  import,  and  which,  the  facts  being  fairly  developed,  is  placed  as  much 
within  the  competency  of  the  vendee  to  solve,  or  to  procure  others  to  do  so, 
as  within  that  of  the  vendor." 

1  Spence  v.  Durein,  3  Ala.  251. 

*  Kerr  on  Fraud  (Bump),  53,  and  cases  cited;  Rawle  Covt.  §  322.  Adams  v. 
Jarvis,  4  Bing.  66,  BEST,  C.  J.,  saying:  "  He  who  affirms  either  what  he  doea 
not  know  to  be  true,  or  knows  to  be  false,  to  another's  prejudice  and  his  own 
gain,  is  both  in  morality  and  law  guilty  of  falsehood  and  must  answer  in  dam- 
ages." See,  also,  Munroe  v.  Pritchett,  16  Ala.  787:  50  Am.  Dec.  203.  Shackel- 
ford  v.  Hundley,  1  A.  K.  Marsh.  (Ky.)500;  10  Am.  Dec.  753.  Davis  v.  Heard,  44 
Miss.  51;  Halls  v.  Thompson,  1  Srn.  &  M.  (Miss.)  485;  Rimer  v.  Dugan,  39  Miss. 
477;  77  Am.  Dec.  687. 

3  Ante,  §  105 ;    Rawle  Covts.  (5th  ed.)§  232;  Kerr  on  Fraud  19,  and  cases  cited. 

4  Campbell  v.  Whittingham,  5  J.  J.  Marsh.  (Ky.)  96;  20  Am.  Dec.  241,  where 
the  purchaser  was  induced  to  omit  an  examination  of  the  title  by  the  assertion  of 
the  vendor  that  the  title  was  good.     See,  also,  Parham  v.  Randolph,  4  How.  (Miss.) 
451;  35  Am.  Dec.  403.     Burwell  v.  Jackson,  5  Seld.  (N.  Y.)  545. 

5  Thomas  v.  Coultas,  76  111.  423.     Kenny  v.  Hoffman,  31  Va.  442.     Brown  v. 
Herrick,  99  Pa.  St.  220. 


ACTION  AGAINST  VENDOR  FOR  DECEIT.  253 

purchaser,  the  only  "means  of  knowing"  the  fraud  of  the  vendor.1 
There  can  be,  of  course,  no  fraud  in  an  innocent  misrepresentation 
by  mistake,  though  the  vendor  may  be  deemed  guilty  of  constructive 
fraud  and  subjected  to  an  action  at  law  for  damages  if  he  declare 
that  to  be  true  of  which  in  fact  he  has  no  knowledge.2  In  equity 
the  contract  may  always  be  rescinded  if  there  be  a  mutual  mistake 
as  to  the  title.3 

Certain  acts  and  conduct  of  the  vendor  other  than  misrepresenta- 
tion or  non-disclosure  of  facts  respecting  the  title  may  amount  to 
fraud ;  e.  g.,  it  is  a  fraud  in  the  vendor  knowingly  to  deliver  a  con- 
veyance without  covenants  for  title  when  the  contract  provides  for 
covenants ;  *  or  to  threaten  to  resell  the  premises  together  with  the 
purchaser's  improvements  unless  the  purchaser  would  accept  a  con- 
veyance with  special  warranty,  he  being  entitled  to  general  cove- 
nants.5 The  right  of  action,  however,  in  these  cases  does  not 
necessarily  grow  out  of  an  inability  on  the  part  of  the  vendor  to 
convey  a  good  title. 

§  107.  PLEADING  AND  PROOF.  In  every  pleading  by  the  pur- 
chaser, the  gravamen  of  which  is  the  vendor's  fraud,  the  facts  con- 
stituting the  fraud  must  be  expressly  alleged.  A  general  allegation 
of  fraud  is  insufficient.6  The  purchaser  must  also  aver  that  he  relied 
on  and  was  deceived  by  the  vendor's  fraudulent  representation.7  If 
facts  showing  fraud  are  alleged  it  is  not  necessary  to  allege  fraud  in 
express  terms ;  the  law  implies  the  fraudulent  intent.8  Nor  in  an 
action  on  the  case  for  fraud  and  deceit  is  it  necessary  to  allege  a 
scienter  on  the  part  of  the  vendor,  for  if  the  vendee  be  injured  by 
a  representation  which  is  not  true  in  fact,  his  right  of  action  is  com- 
plete, whether  the  vendor  was  or  was  not  aware  of  the  falsity  of  his 

1  Ante,  §  104. 

'Munroe  v.  Pritchett,  16  Ala.  787;  50  Am.  Dec.  203. 

J 1  Story  Eq.  §  142.  Hitchcock  v.  Giddings,  4  Price.  135.  Wood  v.  Johnson, 
3  Conn.  597.  Davis  v.  Heard,  44  Miss.  51.  Bradley  v.  Chase,  22  Me.  511. 
Armistead  v.  Hundley,  7  Grat.  (Va.)  64.  Sanford  v.  Justice,  9  Mo.  865. 

4Bethell  v.  Bethell,  92  Ind.  318. 

1  Denston  v.  Morris,  2  Edw.  Ch.  (N.  Y.)  37. 

•Marsh  v.  Sheriff,  (Md.)  14  Atl.  Rep.  664. 

1  Luckie  T.  McGlasson,  22  Tex.  282. 

•Prysev.  McGuire,  81  Ky.  611.  Lanier  v.  Hill,  25  Ala.  559.  Jo&selyn  T. 
Edwards,  57  Ind.  212. 


254  MARKETABLE  TITLE  TO  REAL  ESTATE. 

statement.  The  vendor  is  constructively  guilty  of  fraud  if  he  allege 
a  thing  to  be  true  of  which  he  has  in  fact  no  knowledge.1  It  has 
been  held  that  the  plaintiff  must  allege  that  the  matters  in  respect 
to  which  the  false  representations  were  made  by  the  defendant, 
were  such  as  lay  peculiarly  within  his  knowledge ;  otherwise  no 
cause  of  action  would  appear  in  consequence  of  the  rule  maintained 
by  some  cases,  that  the  purchaser  has  no  right  to  rely  upon  the 
representations  of  the  vendor  in  regard  to  matters  upon  which  he 
might  have  obtained  information  from  other  sources,  such  as  the 
public  records.2 

The  burden  is  on  the  vendee  to  prove  the  fraud  which  he  alleges.8 
Fraud  is  never  presumed,  though  of  course  aprima  facie  case  of 
fraud  may  be  established,  that  is,  a  state  of  facts  may  be  shown 
which,  unexplained,  will  be  held  to  amount  to  fraud.4  The  mere 
existence  of  defects  in  the  title  is  not  sufficient,  however,  to  raise  a 
presumption  of  fraud  on  the  part  of  the  vendor.5 

1  Saund.  PI.  527.  Munroe  v.  Pritchett,  16  Ala.  787;  50  Am.  Dec.  203.  Britt  v. 
Marl-,  (Oreg.)  25  Pac.  Rep.  636;  Rolfes  v.  Russell,  5  Oreg.  400;  Denning  v. 
Cresson,  6  Oreg.  241. 

'Bianconi  v.  Smith,  (Ariz.)  28  Pac.  Rep.  880,  where  it  was  also  held  that  a  pur- 
chaser failing  to  examine  the  title  cannot  complain  of  the  vendor's  false  and 
fraudulent  representations  —  a  rule  that  may  well  excite  question.  See 
ante,  p.  244. 

*  Story  Eq.  Jur.  200.  Holland  v.  Anderson,  38  Mo.  55.  Williams  v.  Thomas, 
7  Kulp.  (Pa.  Co.  Ct.  R«p.)  371. 

4  Green  v.  Chandler,  25  Tex.  148. 

'Harland  v.  Eastland,  Hard.  (Ky.)  590,  semble. 


OF  AFFIRMANCE    BY   PROCEEDINGS  AT  LAW   AFTER  THE  CON- 
TRACT HAS  BEEN  EXECUTED. 

ACTION  FOR  COVENANT  BROKEN. 

CHAPTER  XII. 

OF  THE  COVENANT  FOR  SEISIN. 

FORM  AND  EFFECT.     §  108. 

WHAT  CONSTITUTES  A  BREACH.     §  109. 

ASSIONABILITY  OF  THIS  COVENANT. 

In  general.     §  110. 

Covenant  of  seisin  does  not  run  with  the  land.    §  111. 

Contrary  rule.    Doctrine  of  continuing  breach.     §112 

Possession  must  have  passed  with  covenantor's  deed.    §  113. 

When  Statute  of  Limitations  begins  to  run.    §  114. 

Conflict  of  laws.     §115. 
MEASURE  OF  DAMAGES.    §  116. 
BURDEN  OF  PROOF.     §  117. 
PLEADINGS.    §  118. 

§  108.  FORM  AND  EFFECT.  A  covenant  for  seisin  is  usually 
expressed  by  the  formula  "  that  he,  the  said  (vendor),  is  lawfully 
seised  of  the  said  premises," *  but,  as  a  matter  of  prudence  in  some  of 
the  States,  and  of  necessity  in  others,  it  is  customary  for  the  grantee 
to  require  a  covenant  that  the  grantor  "  is  seised  of  an  absolute, 
perfect  and  indefeasible  estate  in  fee  simple."  This  is  to  avoid  the 
rule  established  by  those  cases  which  hold  that  a  covenant  that  the 
grantor  is  "  lawfully  seised  "  is  satisfied  by  a  mere  seisin  in  fact, 
whether  with  or  without  right.2 

In  every  ease  in  which  the  grantee  is  entitled  to  require  a  con- 
veyance with  full  covenants  for  title,  he  should,  under  no  circum- 
stances, omit  the  insertion  of  a  covenant  for  seisin.  The  principal 
reason  for  inserting  that  covenant  is  to  afford  the  grantee  relief  in 
those  cases  in  which  there  has  been  a  failure  of  the  title,  but  in 


1  Rawle  Covts.  (5th  ed.)  §  21.  n.  3.  Where  the  grantor  covenanted  that  he  was 
"signed"  of  a  good  estate,  etc.,  it  was  held  that  a  court  of  law  could  not  read 
"seised"  for  "signed, "so  as  to  make  the  sentence  operative  as  a  covenant  of 
seisin.  It  was  intimated  that  relief  might  be  had  inequity.  Hagler  v.  Simpson, 
1  Busbee  (N.  Car.),  384. 

*  Post.  §  109,  this  chapter. 


256  MARKETABLE  TITLE  TO  KEAL  ESTATE. 

which  the  rights  of  the  adverse  claimant  have  never  been  asserted, 
and  in  which  there  has  been  no  eviction  of  the  grantee  from  the 
premises.1  Thus,  the  rule  is  general  that  a  grantee  who  has  accepted 
a  conveyance  with  covenants  for  title,  cannot  detain  the  unpaid 
purchase  money  in  case  of  a  total  failure  of  the  title,  unless  he  has 
a  present  right  of  action  upon  the  covenants  in  question,  and  the 
mere  failure  of  title  gives  him  no  right  of  action  upon  those  cove- 
nants, except  that  of  seisin,  unless  there  has  been  an  actual  or  con- 
structive eviction  from  the  premises.  The  rule  generally  prevailing 
in  the  United  States  is  that  a  covenant  that  the  grantor  is  "  lawfully 
seised  "  is  the  same  as  if  he  had  covenanted  that  he  was  rightfully 
seised  of  an  indefeasible  estate  in  fee  simple,2  and  is  to  be  treated  as 
"  an  assurance  to  the  purchaser  that  the  grantor  has  the  very  estate 
in  quantity  and  quality  which  he  purports  to  convey."  8  Hence,  it 
follows  that  there  need  be  no  eviction  or  disturbance  of  the  grantee's 
possession  to  constitute  a  breach  of  the -covenant  of  seisin.  The 
covenant  is  broken  as  soon  as  made  if  the  title  be  not  such  as  the 
covenant  describes.4 

It  is  a  rule  of  property  in  several  of  the  States  that  a  covenant 
that  the  grantor  is  "  lawfully  seised "  does  not  require  that  the 
grantor  should  have  an  indefeasible  estate,  and  is  satisfied  by  an 

1  Wilder  v.  Ireland,  8  Jones  (N.  C.)  L.  90,  where  the  action  was  for  breach 
of  the  covenant  for  quiet  enjoyment,  and  the  breach  alleged  was  that  the  grantor 
had  only  a  life  estate  instead  of  a  fee  in  the  premises.  There  was  a  judgment  for 
the  defendant,  the  court  saying  that  it  was  the  misfortune  of  the  grantee  that  he 
did  not  have  the  deed  drawn  by  a  lawyer,  who  would  have  inserted  a  covenant  of 
seisin. 

*  Parker  v.  Brown,  15  N.  H.  176,  disapproving  Willard  v.  Twitchell,  1  N.  H. 
175.     Gilbert  v.  Bulkley,  5  Conn.  262;  13  Am.  Dec.  57.     Catlin  v.  Hurlburt,  3 
Vt.  403;  Richardson  v.  Dorr,  5  Vt.  20;  Mills  v.  Catlin,  22  Vt.  106.     Kincaid  v. 
Brittain,  5  Sneed  (Tenn.),  119.     In  Fitzhugh  v.   Croghan,  2  J.  J.  Marsh.   (Ky.) 
429;  19  Am.  Dec.  139,  it  was  said  that  the  covenant  of  seisin  was  broken  if  the 
vendor  had  not  the  possession,  the  right  of  possession  and  the  legal  title.     This 
being  so,  the  covenant  would  be  broken  if  the  grantor  had  only  an  equitable  title, 
though  he  was  in  possession,  had  paid  the  purchase  money  in  full  and  was  enti- 
tled to  call  for  a  conveyance:     A  covenant  that  the  grantor  is  seised  in  fee  simple 
implies  that  he  has  the  whole  estate  in  the  premises  and  not  merely  a  good  right 
or  title  to  such  interest  or  estate  as  he  has  therein.     Mills  v.  Catlin,  22  Vt.  98. 

1  Platt  Covts.  306;  Howell  v.  Richards,  11  East,  641,  language  of  Lord  ELLEN- 
BOROUGH.  Mills  v.  Catlin,  22  Vt.  106.  Recohs  v.  Younglove,  8  Baxt.  (Tenn.) 
385.  Mercantile  Trust  Co.  v.  So.  Park  Residence  Co.,  94  Ky.  271. 

*  Post,  §  109. 


OF  THE  COVENANT  FOR  SEISIN.  257 

actual  though  tortious  seisin,1  provided  it  be  under  claim  of  title.8 
The  rule  thus  announced  applies  in  but  few  of  the  States  and  has 
been  distinctly  repudiated  in  others.*  The  principal  reason  assigned 
for  the  rule  is  that  the  true  interpretation  of  such  a  covenant 
according  to  the  intent  of  the  parties,  is  merely  that  the  grantor  is 
in  possession  within  the  meaning  of  the  champerty  acts,  or  those 
which  prohibit  the  conveyance  of  pretensed  titles.4  This  reasoning 
is  by  no  means  satisfactory,  in  view  of  those  cases  which  hold  that 
a  champertous  deed  is  void  as  between  the  parties  themselves,5  and  of 
course  it  has  no  application  in  those  States  in  which  the  conveyance 
of  pretensed  titles  is  not  forbidden.  Nor  would  that  reasoning 
seem  less  objectionable  in  those  jurisdictions  in  which  a  champer- 
tous deed  is  held  valid  as  between  the  parties ;  for  it  is  hardly  to 
be  conceived  that  a  grantee  would  require  a  covenant  in  effect 
merely  that  the  grantor  was  in  possession,  when  in  most  instances 
lie  could  without  delay  or  trouble  inform  himself  as  to  that  fact, 
and  that  he  should  be  satisfied  with  such  a  covenant  instead  of 
requiring  one  that  would  protect  him  against  latent  defects  in  the 

"Marston  v.  Hobbs,  2  Mass.  433;  3  Am.  Dec.  61;  Bickford  v.  Page,  2  Mass. 
455;  Twambly  v.  Henley,  4  Mass.  442;  Bearce  v.  Jackson,  4  Mass.  410;  Slater  v. 
Rawson,  6  Met.  (Mass.)  444 ;  Raymond  v.  Raymond,  10  Gush.  (Mass.)  140;  Fol- 
lett  v.  Grant,  5  Allen  (Mass.),  174.  Griffin  v.  Fail-brother,  1  Fairf.  (Me)  95; 
Boothley  v.  Hathaway,  20  Me.  251 ;  Baxter  v.  Bradbury,  20  Me.  260 ;  37  Am. 
Dec.  49;  Wilson  v.  Widenham,  51  Me.  567.  Watts  v.  Parker,  27  Ind.  228.  Scott 
v.  Twiss,  4  Neb.  133.  Backus  v.  McCoy,  3  Ohio,  211;  17  Am.  Dec.  585;  Wetzel 
v.  Richcreek,  (Ohio)  40  N.  E.  Rep.  1004. 

'Wheeler  v.  Hatch,  3  Fairf.  (Me.)  389.  The  grantor  was  in  possession  in  this 
«ise,  but  did  not  claim  title,  and  it  was  held  that  the  covenant  of  seisin  was 
broken. 

*  See  Parker  v.  Brown,  supra,  p.  254,  and  cases  cited  in  same  note.  Also,  Abbott 
v.  Allen,  14  Johns.  (N.Y.)253;  7  Am.  Dec.  554;  Fowler  v.  Poling,  2  Barb.  (N.Y.) 
803;  Hamilton  v.  Wilson,  4  Johns.  (N.Y.)  72;  4  Am.  Dec.  253.  Furniss  v. 
Williams,  11  111.  229;  Brady  v.  Spurck,  27  111.  481;  Baker  v.  Hunt,  40  111.  264; 
King  v.  Gilson.  32  111.  348;  83  Am.  Dec.  269;  Christy  v.  Ogle.  33  111.  295;  Frazer 
v.  Supervisors,  74  111.  291.  Kincaid  v.  Brittain,  5  Sneed  (Tenu.),  119.  Downer 
v.  Smith,  38  Vt.  464;  76  Am.  Dec.  148.  Brandt  v.  Foster,  5  Clarke  (Io.),  295; 
Zent  v.  Picken,  54  Iowa,  535.  Lockwood  v.  Sturtevunt,  6  Conn.  385;  Davis  v. 
Lyman,  6  Conn.  249,  and  notes.  Lot  v.  Thomas,  1  Penn.  (N.  J.  L.)  297;  2  Am. 
Dec.  354.  Pollard  v.  Dwight,  4  Cranch  (U.  S.  S.  C.),  421.  Dale  v.  Shively, 
8  Kans.  276.  Mercantile  Trust  Co.  v.  So.  Park  Residence  Co.,  94  Ky.  271. 
Clapp  v.  Herdmann,  25  111.  App.  509. 

4  Cases  cited,  note  1  above. 

•Williams  v.  Hogan,  Meigs  (Tenn.),  189. 

17 


258        .  MARKETABLE  TITLE  TO  REAL  ESTATE. 

title.  In  those  States,  however,  in  which  the  rule  in  question  ha& 
become  firmly  established  and  recognized  as  a  rule  of  property,  the 
reasons  which  have  led  thereto,  and  even  the  fact  that  the  rule  it- 
self flows  from  an  arbitrary  construction  of  the  covenant,  are  com- 
paratively unimportant,  so  longasthat  rule  remains  stable  and  fixed, 
and  with  reference  to  which  the  parties  may  safely  contract.  But 
in  those  States,  if  any,  in  which  the  question  has  not  been  settled 
by  judicial  decision  or  statutory  enactment,  it  is  apprehended  that 
the  courts  will  be  slow  to  give  to  the  covenant  of  seisin  the  in- 
terpretation established  by  that  rule. 

It  seems  that  the  rule  under  consideration  is  limited  strictly  in 
its  application  to  those  cases  in  which  the  grantor  covenants  that 
he  is  "lawfully  seised."  Thus  it  was  held  that  a  covenant  that 
he  was  seised  of  a  "perfect,  absolute  and  indefeasible  estate  of 
inheritence"  was  not  satisfied  by  an  actual  seisin,  the  grantor  in 
fact  having  no  title.1 

Covenants  of  seisin  are  by  statute  in  some  of  the  States  implied 
from  the  operative  words  "grant,  bargain  and  sell"  in  a  convey- 
ance.2 But  in  other  States  no  such  implication  is  made,3  and  none 
existed  at  common  law.  The  question  whether  a  deed  made  in  an- 
other State  contains  a  covenant  of  seisin  must  be  determined  by 
the  law  of  that  State.4 

The  right  of  action  for  a  breach  of  the  covenant  of  seisin  is  per- 
sonal and  passes  to  the  personal  representative  and  not  to  the  heir.6 

1  Strong  v.  Smith,  14  Pick.  (Mass.)  132,  the  court  saying:  "The  defendant 
covenanted  that  he  was  seised  of  a  perfect,  absolute  and  indefeasible  estate  of 
inheritance  in  fee  simple,  and  he  clearly  had  no  such  title ;  so  that  his  covenant 
was  broken  on  the  delivery  of  the  deed.  He  undertook  to  convey,  and  the 
grantee  agreed  to  purchase,  an  indefeasible  estate;  and  the  defendant  had  no 
such  estate  to  convey.  The  intended  purchase,  therefore,  has  wholly  failed. 
Indeed,  it  may  well  be  doubted  whether  the  defendant  had  any  title  sufficient  to 
sustain  a  common  covenant  of  seisin."  See,  also,  Price  v.  Johnson,  4  Vt.  253. 
Prescott  v.  Trueman,  4  Mass.  631 ;  3  Am.  Dec.  249.  Garfield  v.  Williams,  2  Vt.  328. 

*Memmert  v.  McKeen,  112  Pa.  St.  315;  so  in  Missouri  Schnelle  Lumber  Co. 
v.  Barlow,  34  Fed.  Rep.  853.  Munford  v.  Kent,  154  Mo.  36.  55  S.  W.  271. 
A  covenant  of  seisin  will  be  implied  from  the  words  "  bargained,  sold  and 
granted  "  in  the  granting  part  of  a  deed,  under  a  statute  giving  that  effect  to 
the  words  "grant,  bargain  and  sell."  Foote  v.  Clark,  102  Mo.  394;  14  S.  W. 
Rep.  98.  The  habendum  clause  does  not  qualify  nor  restrict  the  covenant  of 
seisin  implied  from  the  use  of  the  words  "  grant,  bargain,  and  sell."  Cole- 
man  v.  Clark,  80  Mo.  App.  339. 

'Frost  v.  Raymond,  2  Caines  (N.  Y.),  188;  2  Am.  Dec.  228.  Aiken  v. 
Franklin,  (Minn.)  43  N.  W.  Rep.  839. 

4  Jackson  v.  Green,  112  Ind.  341;  14  N.  E.  Rep.  89. 

"Com.  Dig.  Admr.  B.  13;  Butler  N.  P.  158.  Lucy  v.  Levington,  1  Vent. 
175:  R.  C.,  2Lev.  26.  Hamilton  v.  Wilson,  4  Johns.  (N.Y.)  72;  4  Am.  Dec.  253. 


OF  THE  COVENANT  FOR  SEISIN.  259 

But  if  no  actual  damage  was  sustained  by  the  ancestor,  though  the 
breach  transpired  in  his  lifetime,  the  right  of  action  goes  with  the 
land  to  the  heir,  provided  the  actual  damage  falls  upon  him,  by 
loss  of  the  land.1 

§  109.  WHAT  CONSTITUTES  A  BREACH  OF  THE  COVENANT 
OF  SEISIN.  The  covenant  of  seisin  is  broken  by  any  lessening  of 
the  corpus  or  physical  extent  of  the  property  conveyed,2  or  by  any 
diminution  of  the  quantity  of  estate  therein,  as  if  the  interest  con- 
veyed turn  out  to  be  a  life  estate  instead  of  a  fee  simple.3  It  has 
been  held  that  the  covenant  was  not  broken  by  the  conveyance  of 
an  estate  merely  defeasible  upon  the  happening  or  non-happening 
of  some  future  event,4  such  as  the  disaffirmance  of  a  conveyance 
executed  during  the  minority  of  the  grantor  ;5  but  the  better  opin- 
ion seems  to  be  that  the  covenant  of  seisin  is  satisfied  only  by  the 
transfer  of  an  indefeasible  title,  and  that  it  is  technically  broken  as 
soon  as  made,  if  the  title  be  from  any  cause  defeasible ;'  leaving  the 

1 2  Sugd.  Vend.  577.  Kingdon  v.  Nottle,  1  M.  &  S.  355.  King  v.  Jones,  5 
Taunt.  418;  Orme  v.  Broughton,  10  Bing.  353.  Lovvrey  v.  Tilleny,  31  Minn. 
500;  18  N.  W.  Rep.  452. 

'Wilson  v.  Forbes,  2  Dev.  (N.  C. )  30,  holding  that  the  covenant  of  seisin  is 
broken  if  the  grantor  has  no  right  to  sell  all  the  land  embraced  within  the  boun- 
daries mentioned  in  his  deed.  So  also  if  the  grantor  of  a  mill-site  have  no 
right  to  raise  the  dam  to  the  height  specified  in  the  deed.  Walker  v.  Wilson, 

13  Wis.  522. 

*  Frazer  v.  Supervisors,  74  111.  291.  Lockwood  v.  Sturdevant,  6  Conn.  373. 
A  covenant  that  the  grantor  is  seised  of  an  undivided  moiety  of  an  estate  is 
broken  if  there  has  been  a  judicial  partition  of  the  premises,  though  without 
the  knowledge  of  the  grantor,  and,  though  he  conveyed  only  his  share  of  the 
land.  Morrison  v.  McArthur,  43  Me.  567.  The  covenant  of  seisin  is  broken  if 
the  grantor  has  neither  the  possession,  the  right  of  possession,  nor  the  right 
to  the  legal  title  at  the  time  of  the  conveyance.  Coleman  v.  Clark,  80  Mo. 
App.  339. 

'Pollard  v.  Dwight,  4  Cranch  (U.  S.  S.  C.),421.  Van  Nostrand  v.  Wright, 
Lalor's  Supp.  (N.  Y.)  260;  Coit  v.  McReynolds,  2  Rob.  (N.  Y.)  658.  Wait  v. 
Maxwell,  5  Pick.  (Mass.)  217;  16  Am.  Dec.  391,  where  the  grantor  derived  title 
under  a  conveyance  by  a  person  non  compos  mentis.  The  fact  that  the  title 
of  the  grantor  was  acquired  under  foreclosure  proceedings  in  which  the  mort- 
gagor, a  non-resident,  was  served  by  publication,  and  that  the  title  may  be 
attacked  by  heirs  of  the  mortgagor  within  the  statutory  period  for  showing 
cause  against  the  decree  is  no  breach  of  the  covenant  of  seisin  where  the 
existence  of  such  heirs  is  not  certain.  Zarkowski  v.  Schroeder,  75  N.  Y.  Supp. 
1021 ;  71  App.  Div.  526. 

•Bool  v.  Mix,  17  Wend.   (N.  Y.)   132;   31  Am.  Dec.  285. 

•Shep.  Touchstone,  170:  2  Sngd.  Vend.  (8th  Am.  ed.)  286  (610)  :  2  \Vashb. 
Real  Prop. ( 4th  ed.)  457  (657)  ;  4  Kent  Com. (llth  ed.)  555  (471)  :  RawIeCovts. 
(5thed.)  §58.  See,  generally,  also,  cases  cited  supra  this  chapter  «nd  "  Cove- 
nant against  Tncumbrances."  subd.  "What  Constitutes  Breach."  Abbott  v.  Allen, 

14  Johns.  (N.  Y.)  253;  7  Am.  Dec.  554;  Adams  v.  Conovcr.  87  X.  Y.  452:  41 
Am.  Dec.  381.    Downer  v.  Smith,  38  Vt.  464:  76  Am.  Dec.  148;  Clark  v.  Con- 


260  MARKETABLE  TITLE  TO  REAL  ESTATE 

fact  that  the  title  may  never  be  defeated,  to  be  considered  only 
with  reference  to  the  damages  to  be  awarded  to  the  grantee. 

The  covenant  of  seisin,  according  to  the  weight  of  authority,  is 
broken  if  at  the  time  of  the  conveyance  the  premises  be  in  the 
possession  of  one  claiming  adversely  to  the  grantor.  The  statutes 
prohibiting  the  sale  of  prctensed  titles,  and  declaring  all  such  con- 
veyances to  be  champertous,  do  not  affect  the  validity  of  the  con- 
veyance .as  between  the  grantor  and  grantee.1  The  covenant  of 
seisin  is  broken  if  there  be  no  such  land  in  existence  as  the  grantor 
undertakes  to  convey.2  So  also,  if  at  the  time  of  the  conveyance 
the  grantor  does  not  own  such  things  fixed  to  the  freehold  as  would 
pass  by  a  conveyance  of  the  land  if  he  owned  them.3 

roe,  38  Vt.  471 ;  Clement  v.  Bank,  61  Vt.  298 ;  17  Atl.  Rep.  717.  Brandt  v.  Foster, 
5  Cl.  ( Iowa )  295  :  Van  Wagner  v.  Van  Nostrand,  19  Iowa,  427  ;  Zent  v.  Picken,  54 
Iowa,  535.  Bottorf  v.  Smith,  7  Ind.  673.  Frazer  v.  Board  of  Supervisors,  74 
111.  282;  Brady  v.  Spurck,  27  111.  481;  Christy  v.  Ogle,  33  111.  295.  West  v. 
Stewart,  7  Pa.  St.  122.  Hall  v.  Gale,  20  Wis.  293.  Wilder  v.  Ireland,  8  Jones 
L.  (N.  C.)  90.  Kincaid  v.  Brittain,  5  Sneed  (Tenn.) ,  119.  Lamb  v.  Danforth,  59 
Me.  322 ;  8  Am.  Dec.  426;  Montgomery  v.  Reed,  69  Me.  510.  Pollard  v.  Dwight, 
4  Cranch  (U.  S.),  421.  Lot  v.  Thomas,  1  Penn.  (N.  J.  L.)  297.  Davis  v. 
Lyman,  6  Conn.  249.  Cent.  Appalachian  Co.  v.  Buchanan,  90  Fed.  454; 
Bolinger  v.  Brake,  4  Kan.  App.  180;  45  Pac.  950.  Jewett  v.  Fisher  (Kan. 
App.)  58  Pac.  1023. 

1  Harvey  v.  Doe,  23  Ala.  637;  Abernathy  v.  Boazman,  24  Ala.  189;  60  Am. 
Dec.  459,  citing  Jackson  v.  Demont,  9  Johns.  (N.  Y.)  55;  6  Am.  Dec.  259;  Liv- 
ingston v.  Iron  Works,  9  Wend.  (N.  Y.)  510;  Van  Hoesen  v.  Benham,  15  Wend. 
(N.Y.)  164.  Den  v.  Geiger,  4  Halst.  (N.  J.)  225.  Edwards  v.  Roys,  18  Vt.  473. 
Ailkins  v.  Tomlinson,  121  Mo.  487.  A  covenant  of  seisin  is  broken  by  railway 
occupation  of  part  of  the  premises  as  a  right  of  way.  Wadhams  v.  Swan,  109 
111.  46.  The  proposition  stated  in  the  text  is  not  without  opposing  authority. 
Thus  in  Thomas  v.  Perry,  Pet.  (C.  C.  U.  S.)  39,  it  was  held  that  a  deed  did 
not  convey  lands  which  were  out  of  the  possession  of  the  grantor  at  the  time 
the  deed  was  made,  and  that  consequently  a  covenant  of  seisin  contained  in 
the  deed  was  not  broken  as  to  those  lands.  See,  also,  Williams  v.  Hogan, 
Meigs  (Tenn.),  189.  In  Tennessee,  under  a  statute  providing  that  "  no  person 
shall  agree  to  buy,  or  to  bargain  or  sell,  any  pretended  right  or  title  in 
lands  *  *  *  where  the  seller,  etc.,  has  not  *  *  *  been  in  actual  posses- 
sion/ it  was  held  that  such  a  sale  was  void  even  as  between  the  parties,  the 
court  saying  that  to  give  a  contrary  construction  to  the  statute  would  be  to 
permit  the  buyer  of  dormant  claims  securely  to  take  a  deed  or  covenant  from 
the  claimant,  and  if  he  failed  to  recover  by  a  devise  in  the  name  of  such 
claimant  to  indemnify  himself  by  a  suit  against  his  vendor,  and  that  the 
effect  would  be  to  encourage  and  not  to  suppress  the  spirit  and  practice  of 
champerty.  Williams  v.  Hogan,  Meigs  (Tenn.),  189.  See,  also,  Whittaker 
v.  Kone,  2  Johns.  Cas.  (N.  Y.)  58,  and  note. 

•  Basford  v.  Pearson,  9  Allen  (Mass.),  389;  85  Am.  Dec.  764,  reversing  the 
court  below,  which  had  held  that  there  could  be  no  breach  of  the  covenant 
when  there  was  no  land  to  which  the  covenant  could  attach. 

*Mott  v.  Palmer,  1  Const.  (N.  Y.)  564,  where  the  fixtures  consisted  of  a 
rail  fence  placed  there  by  a  tenant  under  an  agreement  by  which  he  might 


OF  THE  COVENANT  FOR  SEISIN.  261 

Neither  a  judgment  nor  a  mortgage,1  nor  a  mere  incumbrance,2 
such  as  an  outstanding  term  of  years3  nor  an  easement  in  the  prem< 
ises,4  would  amount  to  a  breach  of  the  covenant  of  seisin,  since  none 
of  these  operate  a  divestiture  of  the  grantor's  technical  seisin.  A 
right  of  dower,  contingent5  or  consummate,6  is  an  incumbrance 
within  the  foregoing  rule.  Nor  is  this  covenant  broken  by  the 
existence  of  a  highway  over  the  land  granted,7  since  the  freehold 
still  remains  in  the  owner  of  the  soil.  Neither  is  the  covenant 
broken  by  condemnation  proceedings,8  nor  by  an  unlawful  intru- 
sion on  the  land  ;9  nor  by  the  unlawful  removal  of  fixtures  by  a  ten- 
ant after  the  expiration  of  his  term.10  If  the  grantor  were  lawfully 
seised  of  the  estate  and  had  the  legal  title  at  the  time  of  the  cove- 
nant, no  subsequent  event  could  amount  to  a  breach  thereof.11 


remove  them  at  pleasure.  The  proposition  stated  in  the  text  follows  from  the 
technical  definition  of  the  word  "  land,"  which  includes  the  soil,  everything 
within  it,  and  all  buildings,  trees,  fences  and  fixtures  upon  it. 

1  Reasoner  v.  Edmundson,  5  Ind.  394.  Sedgwick  v.  Hollenbeck,  7  Johns.  ( X. 
Y.)  376;  Stanard  v.  Eldridge,  16  Johns.  (X.  Y.)  254.  The  reason  of  this 
rule  is  that  the  mortgagor  is  regarded  as  the  real  owner,  and  the  mortgagee 
as  having  a  chattel  interest  only.  Runyan  v.  Mesereau,  11  Johns.  (N.  Y. ) 
538;  6  Am.  Dec.  393,  and  cases  cited  in  note.  The  rule  above  stated  applies, 
though  the  prior  mortgage  be  foreclosed  and  the  property  lost  to  the  cov- 
enantee.  Coit  v.  McReynolds,  2  Rob.  (X.  Y.)  655. 

"Fitzhugh  v.  Croghan,  2  J.  J.  Marsh,  (Ky.)  439;  19  Am.  Dec.  139;  Hebler 
v.  Brown,  41  X.  Y.  Supp.  441. 

'  Under  a  statute  providing  that  a  conveyance  of  lands  shall  be  effectual 
without  the  attornment  of  a  tenant  of  the  grantor,  it  was  held  that  the  con- 
tinued occupancy  by  the  tenant  after  the  grant,  did  not  constitute  a  breach 
of  the  covenant  of  seisin,  Kellum  v.  Insurance'  Co.,  101  Ind.  455.  See,  also, 
Lindley  v.  Dakin,  13  Ind.  388;  Hebler  v.  Brown,  41  X.  Y.  Supp.  441,  where 
the  incumbrance  was  a  lease  of  the  mines  on  the  premises  for  99  years  with 
an  option  to  purchase  the  mineral  interest. 

4  Blondeau  v.  Sheridan,  81  Mo.  545. 

'Massie  v.  Craine,  1  McC.  (S.  C.)  L.  489;  Building  Co.  v.  Fray,  96  Va. 
559,  32  S.  E.  58. 

'  Tuite  v.  Miller,  10  Ohio,  382,  the  court  saying  there  was  no  breach  though 
the  purchaser  was  obliged  to  pay  a  sum  in  commutation  of  the  widow's  right. 
'  The  purchaser  should  have  protected  himself  by  a  covenant  against  incum- 
brances. 

7  Boone  Real  Prop.  §  311 ;  Tiedeman  Real  Prop.  §  851 ;  4  Am.  &  Eng.  Encyc. 
of  L.  479.  Whitbeck  v.  Cook,  15  Johns.  (X.  Y.)  483;  8  Am.  Dec.  272. 
Vaughn  v.  Stuzaker,  16  Ind.  338.  Moore  v.  Johnston,  87  Ala.  220:  6  So. 
Rep.  50. 

'Smith  v.  Hughes,  50  Wis.  620;   Merser  v.  Oestrich,  52  Wis.   693. 

•  Smith  v.  Hughes,  50  Wis.  620. 

10Loughran  v.  Ross,  45  X.  Y.  792. 

"Fitzhugh  v.  Croghan,  2  J.  J.  Marsh.  (Ky.)  439;  19  Am.  Dec.  139,  citing 
2  Saund.  171  c.  Morris  v.  Phelps,  5  Johns.  (X.  Y.)  53;  4  Am.  Dec.  323. 
Jones  v.  Warner,  81  111.  343. 


262  MARKETABLE  TITLE  TO  REAL  ESTATE. 

Whatever  subsequently  occurs  to  defeat  the  title  cannot  affect  the 
covenant  of  seisin.1  Of  course  there  is  little  occasion  for  the  appli- 
cation of  this  principle,  except  in  the  case  of  a  tortious  disseisin  of 
the  covenantee,  or  the  enforcement  of  a  prior  lien  or  incumbrance 
upon  the  premises.  The  covenant  of  seisin  secures  the  grantee  only 
against  any  title  existing  in  a  third  person.  The  fact  that  the 
grantee  himself  was  seised  of  the  premises  is  not  a  breach.8  He 
would  be  estopped  from  setting  up  his  title  against  the  grantor.* 

§  110.  ASSIGNABILITY  OF  THE  COVENANT  OF  SEISIN.  In 
general.  A  covenant  for  title  is  said  to  run  with  the  land  when  the 
right  to  recover  damages  for  a  breach  thereof  passes  with  the  land 
to  the  covenantee's  grantee,  or  to  the  heir  of  the  covenantee,  instead 
of  remaining  with  the  covenantee  in  the  first  instance,  or  passing  to 
his  personal  representative  in  the  second.  In  either  case  the  person 
thus  succeeding  to  the  rights  of  the  covenantee  is  styled  "  assig- 
nee;" there  is,  in  strictness,  however,  no  assignment;  the  rights  of 
the  so-called  assig-nee  being  cognizable  by  a  court  of  law,  he  being 
permitted  to  sue  in  his  own  name  for  a  breach  of  the  covenant.  His 
rights  spring  rather  from  a  privity  of  estate  between  himself  and 
the  covenanting  parties  than  from  any  formal  assignment  on  the 
part  of  the  covenantee,4  though  of  course  he  cannot  claim  those 
rights  except  under  an  instrument  sufficient  to  convey  the  land.5 
All  covenants  for  title  run  with  the  land  until  they  are  broken.6 
They  then  become  a  species  of  personal  property,  a  chose  in  action, 

1  Coit  v.  McReynolds,  2  Rob.  (N.  Y.)  655.  This  was  an  action  for  breach  of  a 
covenant  of  seisin.  The  covenantor  derived  title  under  a  sheriff's  deed  executed 
in  pursuance  of  a  judgment  of  foreclosure.  The  judgment  was  opened  while 
the  property  was  in  the  plaintiff's  hands,  and  a  prior  mortgage  was  foreclosed, 
whereby  the  plaintiff  lost  the  property. 

'Bigelow  Estoppel,  346.  Furness  v.  Williams,  11  111.  229;  Beebe  v.  Swart 
wout,  8  Gil.  (111.)  162.  Fitch  v.  Baldwin,  17  Johns.  (N.  Y.)  161.  Horrigan  v. 
Rice,  39  Minn.  49;  38  N.  W.  Rep.  765. 

•Fitch  v.  Baldwin,  17  Johns.  (N.  Y.)  161,  the  court  saying:  "  It  can  never  be 
permitted  to  a  person  to  accept  a  deed  with  covenants  of  seisin,  and  then  turn 
round  upon  his  grantor  and  allege  that  his  covenant  is  broken,  for  that  at 
the  time  he  accepted  the  deed  he  himself  was  seised  of  the  premises.  If  there 
had  been  fraud  in  the  case,  and  the  grantee  could  have  shown  that  he  had  been, 
induced  by  undue  means  and  in  ignorance  of  his  rights  to  take  a  deed  for  his 
own  land,  there  might  be  relief  in  a  court  of  equity." 

4  Rawle  Covts.  (5th  ed.)  §  232. 

»Beardsley  v.  Knight,  4  Vt.  471;  33  Am.  Dec.  193. 

« Rawle  Covts.  (5th  ed.)  §  204. 


OF  THE  COVENANT  FOR  SEISIN.  263 

which,  like  any  other  personal  property,  passes  to  the  personal  rep- 
resentative of  the  covenantee.  It  is  sometimes  said  that  the  cove- 
nants cease  to  run  witli  the  laud  after  breach  because  then  they  are 
turned  into  mere  rights  of  action,  incapable  of  assignment  at  com- 
mon law.  But  as  the  running  of  the  covenants  with  the  land  is  an 
incident  flowing  from  privity  of  estate  between  the  parties,  and  in 
no  wise  dependent  upon  any  assignment  of  rights  accrued  on  the 
part  of  the  covenantee  to  his  grantee,  the  better  reason  would  seem 
to  be  that  the  covenants  no  longer  run  with  the  land  simply  because 
their  purposes  have  been  accomplished,  and  nothing  remains  of 
them  except  a  right  of  action  for  the  breach,  which  would  no  more 
pass  by  an  alienation  on  the  part  of  the  owner  of  the  land  than 
would  a  right  to  recover  damages  for  a  trespass  committed  upon  the 
property.  In  those  States,  however,  in  which  a  remote  grantee  is 
held  entitled  to  the  benefits  of  the  covenant  of  seisin  and  the  cove- 
nant against  incumbrances,  he  is  properly  described  as  "  assignee," 
the  conveyance  of  the  land  being  construed  in  equity  to  amount  to 
an  assignment  of  the  grantor's  right  of  action  for  a  breach  of  those 
covenants.1 

§  111.  Covenant  of  seisin  does  not  run  with  land.  In  most 
of  the  American  States  the  rule  is  established  that  a  covenant  of 
seisin  does  not  run  with  the  land.2  The  principal  reasons  assigned 

1  Roberts  v.  Levy,  3  Abb.  Pr.  (N.  Y.)  811. 

•4  Kent  Com.  (llth  ed.)  471;  2  Sugd.  Vend.  (8th  Am.  ed.)  240  (577),  notes; 
Rawle  Covts.  (5th  ed.)  §  205.  Pate  v.  Mitchell,  23  Ark.  590;  79  Am.  Deo.  114: 
Hendricks  v.  Kesee,  32  Ark.  714.  Salmon  v.  Vallejo,  41  Cal.  481.  See  the  cases 
cited  to  the  proposition  that  the  covenant  of  seisin  is  broken  as  soon  as  made,  if 
the  covenantor  have  no  title;  ante,  §  109.  Greenby  v.  Willcocks,  2  Johns.  (N.Y.) 
1,  LIVINGSTON,  J.,  dissenting;  3  Am.  Dec.  879.  This  was  the  leading  case  in  New- 
York  prior  to  the  adoption  of  the  Code  of  Civil  Procedure  in  that  State,  a  pro- 
vision of  which  that  every  action  shall  be  prosecuted  by  and  in  the  name  of  the 
real  party  in  interest,  has  been  construed  to  give  to  a  remote  assignee  the  right 
to  maintain  an  action  in  his  own  name  for  breach  of  a  covenant  of  seisin  made 
with  one  through  whom  he  claims  title.  See  infra,  §  112.  Other  cases  in  that 
State  following  the  decision  in  Qreenby  v.  Willcocks,  supra,  are  as  follows: 
Tillotson  v.  Boyd,  4  Sandf.  (N.  Y.)  521;  Blydenburgh  v.  Cotheal,  1  Duer  (N.Y.), 
176;  Hamilton  v.  Wilson,  4  Johns.  (N.  Y.)  72;  4  Am.  Dec.  253;  McCarty  v.  Leg- 
gett,  3  Hill  (N.  Y.),  134;  Beddoe  v.  Wadsworth,  21  Wend.  (N.  Y.)  120;  Mygatt  v. 
Coe,  124  N.  Y.  212;  26  N.  E.  Rep.  611.  In  other  states;  Bickford  v.  Page,  2  Mass. 
455;  Marston  v.  Hobbs,  2  Mass.  433;  3  Am.  Dec.  61,  obiter;  Slater  v.  Rawson,  1 
Met.  (Mass.)  455;  Tufts  v.  Adams,  8  Pick.  (Mass.)  549;  Whitney  v.  Dinsmore,  6 


264  MARKETABLE  TITLE  TO  REAL  ESTATE. 

for  this  position  are :  (1)  That  the  covenant  in  question  is  broken 
as  soon  as  made  if  the  covenantor  have  no  title,  and  that  a  present 
right  of  action  immediately  accrues  thereupon  to  the  covenantee, 
which,  being  a  mere  chose  in  action,  is  both  at  common  law  and  by 
virtue  of  the  statute  32  Hen.  VIII,  c.  24,  incapable  of  assignment ; 

Cush.  (Mass.)  128;  Sprague  v.  Baker,  17  Mass.  586;  Bartholomew  v.  Candee,  14 
Pick.  (Mass.)  167;  Bynes  v.  Rich,  3  Gray  (Mass.),  518;  Ladd  v.  Noyes,  137  Mass.  151. 
It  is  difficult  to  reconcile  these  decisions  with  those  of  the  same  State  declaring 
that  the  covenant  of  seisin  is  satisfied  by  a  seisin  in  fact  though  without  right; 
for  to  reach  the  conclusion  that  the  covenant  in  question  does  not  run  with  the 
land,  it  seems  absolutely  necessary  to  decide  that  the  covenant  is  broken  as  soon 
as  made  if  the  covenantor  was  not  at  that  time  seised  of  an  indefeasible  estate. 
Mitchell  v.  Warner,  5  Conn.  497.  This  case  contains  an  elaborate  exposition  of 
the  rule  that  the  covenant  of  seisin  does  not  run  with  the  land,  and  has  been 
frequently  cited  as  a  leading  case.  Lockwood  v.  Sturdevaut,  6  Conn.  373; 
Davis  v.  Lyman,  6  Conn.  256;  Hartford  Co.  v.  Miller,  41  Conn.  112;  Gilbert  v. 
Bulkley,  5  Conn.  262;  13  Am.  Dec.  57.  Prov.  Life  &  Tr.  Co.  v.  Seidel,  (Pa.  St.> 
23  Atl.  Rep.  561.  Kenny  v.  Norton,  10  Heisk.  (Tenn.)  384.  Scoffins  v.  Grandstaff , 
12  Kans.  467.  Pence  v.  Duval.  9  B.  Mon.  (Ky.)  48.  Smith  v.  Jefts,  44  N.  H.  482. 
Chapman  v.  Kimball,  7  Neb.  399;  S.  C.,  11  Neb.  250;  Davidson  v.  Cox,  10  Neb. 
150;  4  N.  W.  Rep.  1035.  Chapman  v.  Holmes,  5  Halst.  (N.  J.)  20;  Carter  v. 
Denman,  3  Zab.  (N.  J.  L.)  260;  Lot  v.  Thomas,  2  N.  J.  L.  297;  2  Am.  Dec.  £54; 
Garrison  v.  Sandford,  12  N.  J.  L.  261.  Durand  v.  Williams,  53  Ga.  76,  obiter  ; 
but,  see  Redwine  v.  Brown,  10  Ga.  318,  where  a  doubt  was  suggested  as  to  the 
rule  stated  in  the  text  in  view  of  the  general  policy  of  the  laws  of  that  State  iu 
favor  of  the  assignability  of  choses  in  action.  By  statute  in  Georgia  since  the 
above  decision  an  assignee  is  given  the  benefit  of  the  covenant  against  incum- 
brances.  Rev.  St.  1882,  p.  672.  Randolph  v.  Kinney,  3  Rand.  (Va.)  397. 
Grist  v.  Hodges,  3  Dev.  (N.  C.)  L.  200.  Revenel  v.  Ingram,  131  N.  C.  549; 
42  S.  E.  967.  Brady  v.  Spurck,  27  111.  482;  Jones  v.  Warner,  81  HI.  343; 
Richard  v.  Bent,  59  111.  38;  14  Am.  Rep.  1.  This  case  distinguishes  between 
a  covenant  of  seisin  and  that  against  incumbrances,  holding  that  an  assignee  i» 
entitled  to  the  benefit  of  the  latter.  Moore  v.  Merrill,  17  N.  H.  75;  43  Am. 
Dec.  593.  Lowery  v.  Tilleny,  31  Minn.  500;  18  N.  W.  Rep.  452.  Williams  v. 
Wetherbee,  1  Aik.  (Vt.)  253;  Garfield  v.  Williams,  2  Vt.  327;  Pierce  T. 
Johnson,  4  Vt.  255;  Swasey  v.  Brooks,  30  Vt.  692.  Westrope  v.  Chambers, 
51  Tex.  178.  Pillsbury  v.  Mitchell,  5  Wis.  21.  The  rule  stated  in  the  text 
prevailed  in  Maine  prior  to  the  statute  in  that  State  providing  in  ex- 
press terms  that  an  assignee  should  have  the  benefit  of  the  covenant  of  seisin. 
Hacker  v.  Storer,  8  Gr.  (Me.)  228;  Pike  v.  Galvin,  29  Me.  188.  Lewis 
v.  Ridge,  Cro.  Eliz.  863,  and  Lucy  v.  Livington,  2  Lev.  26;  1  Vent.  175; 
2  Keble,  831,  have  been  very  generally  cited  by  the  American  courts  in 
support  of  the  proposition  contained  in  the  text.  Mr.  Rawle,  however,  in 
his  erudite  treatise  on  the  Law  of  Covenants  for  Title,  says  that  they 
decide  nothing  more  tha^n  that  a  covenant  for  quiet  enjoyment  ceases 
to  run  with  the  land  after  it  is  broken.  Covts.  for  Title,  §  205.  In  Gar- 
rison v.  Sanford,  12  N.  J.  L.  261,  the  court  held  that  a  breach  of  the  cove- 


OF  THE  COVENANT  FOR  SEISIN.  263 

and  (2)  that  the  grantor  and  covenantor  having  no  title  no  estate 
could  pass  by  his  conveyance  to  the  covenantee,  and  that  conse- 
quently there  was  nothing  with  which  the  covenant  could  run  so  as 
to  enure  to  the  benefit  of  a  remote  grantee.1 

nants  of  seisin  or  against  incumbrances  did  not  enure  to  the  benefit  of  a  subse- 
quent grantee  of  the  land.  "  If,"  said  the  court,  "a  man  breaks  the  leg  of  my 
horse,  whom  I  afterwards  sell,  the  purchaser  cannot  sue  for  the  injury,  as  it  is 
not  done  to  him;  and  the  injury  to  me  is  not  diminished  nor  my  right  to  redress 
destroyed  because  I  have  parted  with  the  animal."  The  case  supposed  by  the 
court  is  by  no  means  parallel  to  that  of  a  subsequent  grantee  claiming  the  benefit 
of  the  original  grantor's  covenant  of  seisin.  In  the  case  imagined  the  actual  loss, 
whatever  it  may  be,  is  sustained  by  the  vendor,  while  in  the  case  of  a  breach  of 
the  covenant  of  seisin  the  actual  loss  or  injury  must,  if  the  land  has  been  trans- 
ferred, fall  upon  the  grantee,  and  it  would  seem  as  inequitable  to  deny  to  him  the 
right  of  action  on  the  covenant  as  it  would  be  to  give  to  the  seller  of  the  horse 
the  right  to  recover  for  an  injury  to  the  horse  inflicted  after  the  property  in  it 
had  passed  to  the  vendee.  In  Raymond  v.  Squire,  11  Johns.  (N.  Y.)  47,  the  cove- 
nantee was  allowed  to  recover  in  an  action  on  a  covenant  of  seisin  after  the  land 
had  been  transferred  by  him.  A  covenantee  does  not  lose  his  right  to  recover  for 
breach  of  the  covenant  for  seisin  by  conveying  his  right  and  title  to  the  land  to  a 
third  person.  Cornell  v.  Jackson,  3  Gush.  (Mass.)  506.  A  covenant  that  the 
land  conveyed  contains  a  certain  number  of  acres  is  equivalent  to  a  covenant  of 
seisin,  is  broken  as  soon  as  made  if  there  be  a  deficiency  in  the  acreage,  and  the 
right  of  action  does  not  pass  to  an  assignee.  Salmon  v.  Vallejo,  41  Cal.  481. 

It  is  worthy  of  note  that  while  the  early  New  York  decisions  declare  that  the 
benefit  of  a  covenant  of  seisin  does  not  pass  to  a  subsequent  grantee  or  assignee 
by  virtue  of  the  covenantee's  conveyance,  they  sustain  a  separate  formal  assign- 
ment of  the  benefit  of  that  covenant,  executed  by  the  covenantee  to  secure  his 
grantee  against  loss  from  an  apprehended  failure  of  the  title.  See  Raymond  v. 
Squire,  11  Johns.  (N.  Y.)  47.  It  is  not  easy  to  understand  why  the  express  and 
formal  assignment  should  be  upheld,  and  the  incidental  or  implied  assignment 
declared  invalid,  since  in  either  case  it  is  a  chose  in  action  that  is  assigned,  and 
the  one  is  as  much  within  the  rule  prohibiting  the  assignment  of  rights  in  action 
as  the  other.  In  Kenny  v.  Norton,  10  Heisk.  (Tenn.)  385,  the  court  declined  to 
depart  from  the  rule  that  the  covenant  of  seisin  does  not  run  with  the  land, 
which  it  conceives  to  be  established  by  the  weight  of  American  authority,  and 
assigns,  as  a  reason,  that  the  covenant  of  warranty,  amply  sufficient  under  all 
circumstances  for  the  protection  of  the  assignee,  is  invariably  inserted  in  all  con- 
veyances in  that  State,  except  those  in  which  the  grantor  merely  quit  claims 
such  right  or  interest  as  he  may  have  in  the  land,  and  the  further  reason  that  the 
assignee  is  protected  by  a  short  Statute  of  Limitations  (seven  years)  against  the 
demands  of  the  adverse  claimant. 

1  See  the  cases  cited  in  the  last  note.  See,  also,  Bender  v.  Fromberger,  4  Dall. 
(Pa.)  438;  Stewart  v.  West,  14  Pa.  836.  Webber  v.  Webber,  6  Or.  (Me.)  127. 
Jones  v.  Warner,  81  111.  343.  McCarty  v.  Leggett,  3  Hill  (N.  Y.).  134.  Wilson 


266  MARKETABLE  TITLE  TO  REAL  ESTATE. 

§112.  Contrary  rule.  Doctrine  of  "continuing  breach." 
But  while  the  rule  that  the  covenant  of  seisin  does  not  run  with  the 
land,  obtains,  perhaps,  in  most  of  the  States,  a  contrary  position  has 
been  taken  in  others,  and  maintained  with  much  force.1  They  hold 

v.  Forbes,  2  Dev.  (N.  C.)  32.     Innes  v.  Agnew,  1  Ohio,  389.     Allen  v.  Allen, 
(Minn.)  51  N.  W.  Rep.  473. 

1  Kingdon  v.  Nottle,  1  Maule  &  8.  355;  S.  C.,  4  Maule  &  S.  53.  This  case  was 
decided  in  the  early  part  of  the  present  century,  and  has  been  cited  and  followed 
in  many  of  the  American  cases  holding  that  the  covenant  of  seisin  runs  with  the 
land.  The  case  establishes  the  proposition  that  want  of  title  in  the  covenantor  is 
a  continuing  breach,  not  completed  until  actual  damage  has  been  suffered  by  the 
covenantee  or  his  grantee.  The  decision  has  been  criticized  by  Chancellor  KENT 
as  "  too  refined  to  be  sound"  (4  Kent.  Com.  472),  and  questioned  in  Spoor  v. 
Green,  L.  R.,  9  Exch.  99.  See  Rawle  Covts.  §  208.  See  cases  cited  to  proposition 
that  covenant  against  incumbrances  runs  with  land,  post,  §  128.  Mecklem  v. 
Blake,  22  Wis.  495;  Eaton  v.  Lyman,  33  Wis.  34;  S.  C.,  dissenting  opinion  of 
DIXON,  C.  J.,  30  Wis.  41,  46.  Collier  v.  Gamble,  10  Mo.  467;  Dickson  v.  Desire, 
23  Mo.  162,  overruling  Chauvin  v.  Wagner,  18  Mo.  531 ;  Lawless  v.  Collier,  19 
Mo.  480;  Magwire  v.  Riggin,  44  Mo.  512;  75  Am.  Dec.  121;  Walker  v.  Dearer,  5 
Mo.  App.  139;  Hall  v.  Scott  Co.,  2  McCrary  (U.  S.),  356;  Jones  v.  Cohitsett,  79 
Mo.  188;  Allen  v.  Kennedy,  91  Mo.  324;  2  S.  W.  Rep.  142.  Langenburg  v. 
Dry  Goods  Co.,  74  Mo.  App.  12.  Bacchus  v.  McCoy,  3  Ohio,  211;  17  Am.  Dec. 
585;  Foote  v.  Burnet,  10  Ohio,  331;  36  Am.  Dec.  90;  Devore  v.  Sunderland, 
17  Ohio,  52;  49  Am.  Dec.  442;  Great  Western  Stock  Co.  v.  Saas,  24  Ohio  St. 
542.  Scofield  v.  Iowa  Homstead  Co.  32  Iowa,  317;  7  Am.  Rep.  197.  This  is 
the  leading  Iowa  case.  It  contains  an  able  review  of  authorities  bearing  upon 
the  question  of  the  assignability  of  the  covenant  of  seisin,  and  has  been  fre- 
quently cited  by  the  courts  in  other  States.  Knadler  v.  Sharp,  36  lo.  232; 
Boon  v.  McHenry,  55  lo.  202;  7  N.  W.  Rep.  503.  Martin  v.  Baker,  5  Ind. 
393,  leading  case;  Coleman  v.  Lyman,  42  Ind.  289,  distinguishing  Burnham 
v.  Lasselle,  35  Ind.  425;  Wright  v.  Nipple,  92  Ind.  313;  Worley  v.  Hineman, 
(Ind.)  33  N.  E.  Rep.  261.  The  remark  in  Rawle  Covt.  (5th  ed.)  p.  264, 
n.,  that  in  Indiana  the  court  has  repudiated  the  contract  of  a  "  continuing 
breach  "  of  the  covenant  of  seisin,  must  be  limited  in  its  application  to  cases 
in  which  no  possession  passed  to  the  covenantee.  Beyond  that  the  cases  there 
cited  do  not  go.  See,  also,  p.  314  of  the  same  work,  where  it  is  said  that  the 
cases  in  that  State  maintain  the  doctrine  of  a  continuing  breach  down  to  the 
present  day.  Cole  v.  Kimball,  52  Vt.  639.  McCrady  v.  Brisbane,  1  Nott  & 
McC.  (S.  Car.)  104;  9  Am.  Dec.  676.  Mecklem  v.  Blake,  22  Wis.  495;  82 
Am.  Dec.  707.  The  doctrine  of  the  English  courts,  and  its  American  ad- 
herents, in  respect  to  the  assignability  of  the  covenant  of  seisin,  was  suc- 
cinctly stated  in  this  case  as  follows:.  "These  courts  hold  that  where 
the  covenantor  is  in  possession  claiming  title,  and  delivers  the  possession  to 
the  covenantee,  the  covenant  of  seisin  is  not  a  mere  present  engage- 
ment made  for  the  sole  benefit  of  a  covenantee,  but  that  it  is  a  covenant  of 
indemnity  entered  into  in  respect  of  the  land  conveyed,  and  intended  for  the 


OF  THE  COVENANT  FOB  SEISIN.  267 

that  the  covenant  is  not  completely  broken,  until  the  want  of  title 
in  the  covenantor  has  resulted  in  a  loss  of  the  premises,  or  actual 
damage  suffered  by  the  covenantee,  or  those  deriving  title  from  him ; 
that  the  covenant  is  prospective  in  its  nature,  and  intended  as  a 
security  for  the  title,  or  an  indemnity  against  loss,  attaching  to  and 
running  with  the  land  for  the  benefit  of  such  person  as  shall  be  the 
owner  thereof  at  the  time  the  loss  is  sustained.1  The  cases  which 
decide  that  a  covenant  of  seisin  is  in  the  nature  of  a  security  for  the 
title  attaching  to  and  running  with  the  land  for  the  benefit  of  a 
grantee  of  the  covenantee  would  seem  to  establish  the  better  rule, 
inasmuch  as  it  adds  to  the  security  of  purchasers,  and  tends  to  facil- 
itate the  alienation  of  real  property.  The  opposite  conclusion  is 
founded  upon  the  old  rule  that  a  chose  in  action  is  not  assignable,  a 

security  of  all  subsequent  grantees,  until  the  covenant  is  finally  and  completely 
broken,  and  they  consequently  hold  that  no  such  right  of  action  accrues  to  the 
covenantee  on  the  mere  nominal  breach,  which  always  happens  the  moment  the 
covenant  is  executed,  as  is  sufficient  to  merge  or  arrest  the  covenant  in  the  hands 
of  the  covenantee,  or  to  deprive  it  of  the  capacity  of  running  with  the  land  for 
the  benefit  of  the  person  holding  under  the  deed,  when  an  eviction  takes  place  or 
other  real  injury  is  actually  sustained.  The  possession  of  the  land  or  seisin  in 
fact  under  the  deed,  by  the  covenantee  or  those  claiming  through  him,  is  consid- 
ered such  an  estate  as  carries  the  covenant  along  with  it."  In  Catlin  v.  Hurl- 
burt,  3  Vt.  403,  it  was  held  that  a  covenantee,  who  had  subsequently  conveyed 
the  premises,  could  recover  on  a  covenant  of  seisin,  but  should  not  have  execu- 
tion, until  he  had  lodged  with  the  clerk  of  the  court  a  release  from  his  grantee  of 
all  right  of  action  on  a  covenant  of  warranty  contained  in  the  original  conveyance 
from  the  plaintiff's  grantor. 

1  Kimball  v.  Bryant,  25  Minn.  496,  the  court,  by  GILFILLAN,  C.  J.,  saying: 
"  The  covenant  is  taken  for  the  protection  and  assurance  of  the  title  which  the 
grantor  assumes  to  pass  by  his  deed  to  the  covenantee,  and  where  the  covenantee 
assumes  to  pass  that  title  to  another,  it  is  fair  to  suppose  that  he  intends  to  pass 
with  it,  for  the  protection  of  his  grantee,  every  assurance  of  it  that  he  has, 
whether  resting  in  right  of  action  or  unbroken  covenant,  so  that  if  before  enforc- 
ing his  remedy  for  breach  of  the  covenant,  the  covenantee  execute  a  conveyance 
of  the  land,  unless  there  be  something  to  show  a  contrary  intention,  it  may  be 
presumed  that  he  intends  to  confer  on  his  grantee  the  benefit  of  the  covenant,  so 
far  as  necessary  for  his  protection,  that  is,  that  he  intends  to  pass  all  his  right  to 
sue  for  the  breach,  so  far  as  the  grantee  sustains  injury  by  reason  of  it."  In 
Lowrey  v.  Tilleny,  31  Minn,  500,  it  was  held  that  the  right  of  action  for  breach 
of  the  covenant,  if  not  assigned  by  a  conveyance  of  the  land,  passed  to  the  per- 
sonal representative,  and  not  the  heir. 


268  MARKETABLE  TITLE  TO  REAL  ESTATE. 

rule  which  has  long  since  yielded  to  the  exigencies  of  a  commercial 
age,  and  exists  no  longer,  it  is  apprehended,  in  any  of  the  American 
States.  The  doctrine  that  a  covenant  of  seisin  does  not  run  with 
the  land  seems  to  be  supported  chiefly  by  arguments  of  a  subtle  and 
technical  character,  and  the  rule  itself  seems  not  to  subserve  any  just 
and  desirable  end  ;  whereas  that  construction  which  gives  to  the 
actual  sufferer  the  benefit  of  the  covenant  commends  itself  to  the 
mind  as  both  equitable  and  expedient.1  Besides,  the  enforcement  of 
such  a  rule  practically  destroys  the  usefulness  of  the  covenant.  For 
so  long  as  the  covenantee  has  suffered  no  actual  damage  from  the 
breach,  he  can  recover  no  more  than  nominal  damages ;  and  after 
the  land  has  passed  into  the  hands  of  a  remote  grantee  who  is 
evicted,  the  right  of  action  remaining  in  the  covenantee  will,  most 
probably,  have  become  barred  by  the  Statute  of  Limitations,  usually 
a  short  period  in  most  of  the  American  States.  And  if  not  barred 
the  covenantee,  having  received  full  value  for  the  land  without 
reference  to  any  defect  of  title,  would,  unless  he  conveyed  with 
warranty,  have  sustained  no  actual  damage  himself  from  the  breach, 
and  consequently  would  seem  entitled  to  nothing  more  than  nominal 
damages.  In  several  of  the  States  there  are  now  statutes  which  pro- 
vide in  substance  that  the  grantee  of  a  covenant  shall  have  the 
benefit  of  a  covenant  of  seisin  or  against  incumbrances  contained  in 
the  conveyance  to  his  grantor.2  The  same  effect  has  been  given  to 

1 4  Kent  Com.  471,  the  learned  author  saying  that  it  is  to  be  regretted  that 
the  "technical  acruple"  that  a  chose  inaction  was  not  assignable  does  necessa- 
rily prevent  the  assignee  from  availing  himself  of  any  or  all  of  the  covenants; 
and  that  he  is  the  most  interested  and  the  most  fit  person  to  claim  the  indemnity 
secured  by  them,  for  the  compensation  belongs  to  him  as  the  last  purchaser  and 
the  first  sufferer. 

» Code  Civ.  Proc.  N.  Y.  1876,  §449.  Rev.  St.  Ohio,  p.  1034,  §  4993.  Rev 
St.  Me.  1841,  c.  115,  §  16.  Rev.  St.  Colo.  1883,  p.  172.  Rev.  St.  Ga.  1882,  p. 
672.  Semble,  Code  Cal.  1876,  p.  473,  §  6462,  and  Code  Dak.  1883,  p.  917.  Under 
a  statute  permitting  the  assignment  of  all  choses  in  action,  the  benefit  of  a  cove- 
nant of  seisin  passes  to  a  subsequent  grantee  of  the  premises.  Schofield  v. 
Homestead  Co..  32  Iowa,  317;  7  Am.  Rep.  197.  Allen  v.  Little,  36  Me.  175; 
Stowell  v.  Bennett,  34  Me.  422.  But  the  statute  in  Maine  provides  that  the  sub- 
sequent grantee  must  first  execute  a  release  to  his  grantor  before  he  can  sue  on 
the  covenant  of  the  original  grantor.  Prescott  v.  Hobbs,  30  Me.  345;  Rev.  St. 
Me.  1883,  p.  697.  See,  also,  Rev.  St.  Colo.  p.  172;  2  Lev.  Rev.  Code  Dak.  p. 
917;  Hitt.  Codes  Cal.  1876,  p.  74a  Code  Ga.  1882,  p.  672. 


OF  THE  COVENANT  FOR  SEISIN.  269 

the  generally  prevalent  statutory  provision  that  all  actions  mast  be 
maintained  in  the  name  of  the  real  party  in  interest.1 

The  inconvenience  of  the  American  rule  that  a  covenant  of  seisin 
does  not  run  with  the  land  is  greatly  reduced  in  practice  by  the  fact 
that  in  equity  the  assignment  of  a  chose  in  action  is  held  to  be 
valid,  and  that  a  court  of  law  recognizes  and  enforces  the  rights  of 
the  assignee  by  permitting  an  action  to  be  brought  for  his  use  and 
benefit  in  the  name  of  the  assignor,  the  original  covenantee.2  For 
this  purpose  a  conveyance  of  the  land  will  be  treated  as  an  assign- 
ment of  the  co venan tee's  right  of  action  for  a  breach  of  the  covenant 8 
This  remedy,  however,  is  cumbrous  and  unwieldy  and  has  been 
rendered  obsolete  in  many  of  the  States  by  a  provision  of  the  Code 
that  every  action  shall  be  brought  in  the  name  of  the  real  party  in 
interest.  But  for  the  foregoing  reasons,  and  the  fact  that  a  cove- 
nant of  warranty  is  almost  invariably  inserted  in  conveyances  of 
land,  it  is  probable  that  in  every  State  the  assignee  would  long 
since  have  been  by  statute  given  the  benefit  of  the  covenant  of 
seisin. 

§  113.  Possession  must  have  passed  with  the  covenantor's 
deed.  In  some  of  the  States  adopting  the  rule  that  a  covenant  of 
seisin  runs  with  the  land,  an  important  qualification  of  that  rule 
exists,  namely,  that  the  land  must  actually  pass,  and  possession  be 
taken  under  the  conveyance  of  the  covenantor  in  order  to  give  a 

1  Code  Civil  Proc.  N.  Y.  §  449.  Andrew  v.  Appel.  22  Hun  (N.  Y.),  483,  the 
court  saying:  "  The  objection  existing  at  common  law  that  a  covenant  or  chose 
in  action  was  not  assignable  has  been  obviated  by  modern  legislation."  The 
assignee  is  the  real  party  in  interest.  The  transfer  of  the  land,  the  principal 
thing,  should  be  held  to  imply  an  assignment  of  all  remedies  under  the  covenant 
for  a  breach  thereof.  Ernst  v.  Parsons,  54  How.  Pr.  (1ST.  Y.)  163;  Roberts  v. 
Levy,  3  Abb.  Pr.  (N.  S.)  339. 

9  Clark  v.  Swift,  3  Met.  (Mass.)  395,  the  court  saying  :  "  As  to  the  rule  in  ques- 
tion it  interposes  a  formal  difficulty  only;  and  it  is  no  actual  obstruction  to  the 
due  administration  of  justice.  The  assignment  of  a  chose  in  action  is  valid  in 
equity,  and  courts  of  law  will  take  notice  of  equitable  assignments  made  bona 
fide  and  for  valuable  consideration,  and  will  allow  the  assignee  to  maintain  nn 
action  in  the  name  of  the  assignor."  Peters  v.  Bowman,  98  U.  S.  59.  Collier  v. 
Gamble,  10  Mo.  467. 

"Rawle  Covt.  §  226.  "The  transfer  of  the  land,  the  principal  thing,  should 
b<  held  to  imply  in  equity  an  assignment  of  all  remedies  under  the  covenant  for 
a  breach  thereof.  Ernst  v.  Parsons,  54  How.  Pr.  (N.  Y.)  163;  Roberts  v.  Levy, 
3  Abb.  Pr.  (N.  S.) 


270  MARKETABLE  TITLE  TO  REAL  ESTATE. 

subsequent  grantor  the  benefit  of  the  covenant.1  The  cases  which 
establish  this  position,  proceed  upon  the  principle  that  the  covenant 
of  seisin  is  intended  as  an  indemnity  against  loss  of  the  land  only, 
and  that  if  no  land  passed  to  the  assignee  there  is  nothing  to  create 
a  privity  between  him  and  the  covenantor,  and  consequently  that  he 
has  no  right  of  action  on  the  covenant. 

§  114.  When  Statute  of  Limitations  begins  to  run.  In  those 
States  in  which  it  is  held  that  an  assignee  or  subsequent  grantee  is 
not  entitled  to  the  benefit  of  a  covenant  of  seisin,  the  Statute  of 
limitations  begins  to  run  against  an  action  for  a  breach  of  the  cove- 
nant from  the  time  the  covenant  was  made  ;  that  is  when  the  deed 
containing  the  covenant  was  delivered.2  This  follows  necessarily 
from  the  rule  that  the  covenant  is  broken  as  soon  as  made  if  the 
covenantor  was  not  at  that  time  seised  of  such  an  estate  as  the 
covenant  describes.  Consequently  in  all  of  those  States  the  life  of 
the  covenant  is  measured  by  the  Statute  of  Limitations,  whether  the 
covenantee  or  liis  grantee  has  or  has  not  been  evicted  from  the 
premises.  But  in  those  States  in  which  the  covenant  of  seisin  is 
held  to  run  with  the  land,  the  statute  does  not  begin  to  run  until 
actual  damage  from  the  breach  has  been  sustained.* 

§  115.  Conflict  of  laws.     At  common  law  the  covenantee  might 

1  Bottorf  v.  Smith,  7  Ind.  673;  Bethell  v.  Bethell,  54  Ind.  428;  23  Am.  Rep. 
650;  Craig  v.  Donovan,  63  Ind.  513;  McClure  v.  McClure,  65  Ind.  485.  Dickflon 
v.  Desire,  23  Mo.  162,  overruling  Chauvin  v.  Wagner,  18  Mo.  531.  Shankle 
v.  Ingram,  133  N.  C.  254;  45  S.  E.  578.  Backus  v.  McCoy,  3  Ohio,  216;  17 
Am.  Dec.  585;  Devore  v.  Sunderland,  17  Ohio,  60;  49  Am.  Dec.  442;  Foote  v. 
Burnet,  10  Ohio,  327;  36  Am.  Dec.  90.  This  case  contains  an  elaborate  note 
upon  the  law  of  covenants  of  title  to  real  estate.  In  Chambers  v.  Smith,  23 
Mo.  1 74,  it  was  said :  "  If  there  be  a  total  defect  of  title,  and  the  possession 
have  not  gone  along  with  the  deed,  the  covenant  is  broken  as  soon  as  it  is 
entered  into,  and  cannot  pass  to  an  assignee  upon  any  subsequent  transfer  of 
the  supposed  right  of  the  original  grantee.  In  such  case  the  breach  is  final 
and  complete;  the  covenant  is  broken  immediately  once  for  all,  and  the  party 
recovers  all  the  damages  that  can  ever  result  from  it.  If,  however,  the  pos- 
session pass,  although  without  right —  if  an  estate  in  fact  though  not  in  law, 
be  transferred  by  the  deed,  and  the  grantee  have  the  enjoyment  of  the  prop- 
erty according  to  the  terms  of  the  sale,  the  covenant  runs  with  the  land,  and 
passes  from  party  to  party,  until  the  paramount  title  resultsln  some  damage 
to  the  actual  possession,  and  then  the  right  of  action  upon  the  covenant  rests 
in  the  party  upon  whom  the  loss  falls." 

'Jenkins  v.  Hopkins,  9  Pick.   (Mass.)   542.     Bratton  v.  Guy,  12  S.  Car.  42. 

•  White  T.  Stevens,  13  Mo.  App.  240.  Foshay  v.  Shafer,  116  Iowa  302;  89 
N.  W.  1106. 


OF  THE  COVENANT  FOR  SEISIN.  271 

maintain  an  action  at  law  against  the  covenantor  wherever  he  found 
him,  all  actions  dependent  upon  privity  of  contract  being  deemed 
transitory.1  But  an  assignee,  his  right  of  action  being  dependent 
upon  privity  of  estate,  could  maintain  an  action  on  the  covenant 
only  in  the  jurisdiction  in  which  the  land  lay,  and  the  construction 
of  that  covenant  was  governed  of  course  by  the  lex  rei  sitce?  One 
consequence  of  these  rules  is  that  an  assignee  who  takes  a  convey- 
ance in  a  State  in  which  he  would  be  entitled  to  the  benefit  of  a 
covenant  of  seisin  made  with  his  grantor,  the  land  lying  in  a  State 
in  which  the  contrary  rule  prevails,  would  be  without  remedy 
against  the  remote  covenantor,  in  case  he  should  lose  the  land.  But 
now,  by  force  of  statutes  abolishing  the  common-law  distinction 
between  local  and  transitory  actions,  it  is  held  in  several  of  the 
States  that  the  right  of  an  assignee  to  sue  upon  the  covenants  of  a 
prior  grantor,  is  to  be  determined  by  the  law  of  the  place  where 
the  contract  was  made,  and  not  by  the  lex  rei  sita? 

§  116.  MEASURE  OF  DAMAGES.  Upon  a  breach  of  the  cove- 
nant of  seisin,  which  results  in  the  loss  of  the  estate  to  the  cove- 
nan  tee,  the  measure  of  his  damages  is  the  value  of  the  estate  at  the 
time  of  the  conveyance  as  fixed  by  the  purchase  price  agreed 
upon  by  the  parties,4  with  interest  thereon  for  such  time  as 

1  Chit.  PI.  270;  Rawle  Cov.  (5th  ed.)  §  302.  Clarke  v.  Scudder,  6  Gray  (Mass.), 
122. 

*  Worley  v.  Hineman,  (Ind.)  33  N.  E.  Rep.  260,  overruling  Fisher  v.  Parry,  C8 
Ind.  465,  where  the  subject  was  carefully  considered  and  the  rule  announced 
that  "  whether  a  deed  executed  in  Indiana,  conveying  land  in  another  State,  con- 
tains a  covenant  of  seisin  that  runs  with  the  land,  is  to  be  determined  by  the  law 
of  Indiana."  See,  also  to  same  effect.  Oliver  v.  Loye.  59  Miss.  320;  21  Am.  Law 
Reg.  600. 

•Bethell  v.  Bethell,  92  Ind.  318;  S.  C.,  54  Ind.  428;  23  Am.  Rep.  650. 

4  4  Kent  Com.  475;  Rawle  Covt.  §  158;  2  Washb.  Real  Prop.  728.  See,  also, 
cases  cited,  post,  §  164,  as  to  measure  of  damages  in  case  of  breach  of  cove- 
nant of  warranty.  Staats  v.  Ten  Eyck,  3  Caines  (N.  Y.),  Ill;  3  Am.  Dec.  254. 
This  is  a  leading  case,  but  is  confined  solely  to  the  question  of  damages  where 
there  has  been  an  increase  in  value  of  the  land  from  extrinsic  causes.  There  was 
no  claim  for  damages  to  the  extent  of  improvements  in  addition  to  the  purchase 
money.  Pitcher  v.  Livington,  4  Johns.  (N.  Y.)  1;  4  Am.  Dec.  229;  Bennet  v. 
Jenkins,  13  Johns.  (N.  Y.)  50.  Bender  v.  Fromberger,  4  Dall.  (Pa.)  442.  This  is 
the  leading  case  upon  the  proposition  that  improvements  made  by  the  covenantee 
cannot  be  considered  in  estimating  his  damages  for  a  breach  of  the  covenant  of 
seisin  resulting  in  eviction  or  loss  of  the  estate.  Marston  v.  Hobbs,  2  Mass.  433; 


272  MARKETABLE  TITLE  TO  REAL  ESTATE. 

the  covenantee  is  liable  to  the  real  owner  for  meane  profits,1 
together  with  snch  necessary  costs  and  expenses  as  he  may  have 
incurred  in  defending  the  title.2  The  increased  value  of  the  land 
at  the  time  of  the  loss  of  the  estate,  whether  resulting  from  a 
general  rise  in  the  value  of  lands  or  from  improvements  made 
by  the  covenantee,  cannot  be  considered  in  estimating  the  damages.* 

3  Am.  Dec.  81;  Caswell  v.  Wendell,  4  Mass.  108;  Sumner  v.  Williams,  8  Mass. 
162,  222;  5  Am.  Dec.  83;  Bynes  v.  Rich,  3  Gray  (Mass.),  518.  Stubbs  v.  Page,  2 
Gr.  (Me.)  373;  Wheeler  v.  batch,  12  Me.  389;  Blanchard  T.  Hoxie,  34  Me.  37«; 
Montgomery  v.  Reed,  69  Me.  510.  Ela  v.  Card,  2  N.  H.  175;  9  Am.  Dec.  46; 
Parker  v.  Brown,  15  N.  H.  176;  Nutting  v.  Herbert,  35  N.  H.  120;  Willson  v. 
Willson,  25  N.  H.  229;  57  Am.  Dec.  320.  Mitchell  v.  Hazen,  4  Conn.  495; 
10  Am.  Dec.  169;  Stirling  v.  Peet,  14  Conn.  245.  Catlin  v.  Hurlburt,  3  Vt.  403. 
Bacchus  v.  McCoy,  3  Ohio,  211;  17  Am.  Dec.  585.  Brandt  v.  Foster,  5  lo.  295. 
Cox  v.  Strode,  2  Bibb  (Ky.),  275;  5  Am.  Dec.  603;  Merc.  Trust  Co.  T.  So.  Park 
Res.  Co.,  (Ky.)  22  S.  W.  Rep.  314.  Dale  T.  Shively,  8  Kans.  190;  Scott  T.  Morn- 
ing. 23  Kans.  253.  Furman  v.  Elmore,  2  Nott  &McC.  (S.  C.)  189,  n. ;  Pearson  v. 
Davis,  McMull.  L.  (S.  C.)  37;  Henning  v.  Withers,  3  Brev.  (S.  C.)  458;  6  Am. 
Dec.  589.  Kincaid  v.  Brittain,  5  Sneed  (Tenn.),  119.  Tapley  v.  Lebeaume.  1 
Mo.  550;  Martin  v.  Long,  3  Mo.  391.  Egan  v.  Martin,  71  Mo.  App.  60;  79 
Mo.  App.  676.  Wilson  v.  Forbes,  2  Dev.  (N.  C.)  30.  Overhiser  v.  MeCol- 
lister,  10  Ind.  44.  Frazer  v.  Supervisors,  74  111.  291.  Daggett  v,  Reas,  79 
Wis.  60;  48  N.  W.  Rep.  127.  It  seems,  from  the  case  of  Nichols  v.  Walter. 
8  Mass.  243,  that  in  a  case  at  nisi  prius  in  New  Hampshire  the  plaintiff 
was  awarded  the  value  of  the  land  at  the  time  of  eviction  as  the  measure  of 
bis  damages  for  a  breach  of  the  covenant  of  seisin. 

1  Post,  §  172. 

*  Poat,  §  173. 

•Pitcher  v.  Livingston,  4  Johns.  (N.  Y.)  7;  4  Am.  Dec.  229,  where  it  was  »aid 
by  VAX  NESS,  J. :  ' '  One,  and  perhaps  the  principal  reason  why  the  increased 
value  of  the  land  itself  cannot  be  recovered,  is  because  the  covenant  cannot  be 
construed  to  extend  to  anything  beyond  the  subject-matter  of  it,  that  is,  the  land, 
and  not  the  increased  value  of  it  subsequently  arising  from  causes  not  existing 
when  the  covenant  was  entered  into.  For  the  same  reason  the  covenantor  ought 
not  to  recover  for  the  improvements,  for  these  are  no  more  the  subject-matter  of 
the  contract  between  the  parties  than  the  increased  value  of  the  land."  And  by 
KENT,  C.  J.:  "Improvements  made  upon  the  land  were  never  the  subject-mat- 
ter of  the  contract  of  sale  any  more  than  the  gradual  increase  or  diminution  in 
value.  The  subject  of  the  contract  was  the  land  as  it  existed  and  what  it  was 
worth  when  the  contract  was  made."  In  Bender  v.  Fromberger,  4  Dall.  (Pa.) 
436,  the  question  was  considered  with  learning  and  research  and  an  elaborate 
opinion  was  delivered,  settling  the  rule  as  stated  in  the  text.  Among  other 
reasons  for  the  rule,  given  by  TTLGHMAN,  C.  J..  were  these:  "  The  title  of  land 
rests  as  much  within  the  knowledge  of  the  purchaser  as  the  seller;  it  depends 
upon  writings  which  both  parties  have  an  equal  opportunity  of  examining.  If 


OF  THE  COVENANT  FOB  SEISIN.  273 

The  foregoing  rules,  it  is  believed,  prevail  in  every  State  of  the 
Union.1  The  true  consideration  of  the  conveyance  may  be  shown 
by  parol  evidence,  and  the  deed  may  be  contradicted  in  that  respect.8 
If  the  consideration  be  not  stated,  and  cannot  be  ascertained,  the 
value  of  the  land  at  the  time  of  the  conveyance  will  be  the  measure 
of  damages.8 

The  covenant  of  seisin  is  broken  as  soon  as  made,  and  the 
covenantee's  right  of  action  therein  complete,  if  the  covenantor 
have  not,  at  the  time  of  the  covenant,  the  title  therein  described.* 
It  is  obvious,  however,  that  if  the  covenantee  remain  in  the  undis- 
turbed enjoyment  and  possession  of  the  estate  he  has  suffered  no 
damage  from  the  breach.  Possibly  he  may  never  be  disturbed  in 
the  possession,  for  the  real  owner  may  never  assert  his  rights,  or 
they  may  become  barred  by  the  Statute  of  Limitations.5  Accord- 
ingly, the  rule  has  been  established  by  numerous  decisions  that  the 

ibe  seller  make  use  of  fraud,  concealment  or  artifice  to  mislead  the  purchaser  in 
examining  the  title,  the  case  is  different;  he  will  then  be  answerable  for  all  losses 
which  may  occur.1'  These,  with  Staats  v.  Ten  Eyck,  supra,  are  the  leading  cases 
upon  the  measure  of  damages  for  a  breach  of  the  covenant  of  seisin  where  the 
covenantee  has  lost  the  estate,  and  they  have  been  followed  in  every  State  in 
which  the  question  has  arisen. 

1  The  author  has  met  with  but  one  instance  in  which  a  different  rule  was 
-applied,  and  that  is  a  nisi  prius  decision  of  a  New  Hampshire  court,  referred  to 
in  the  case  of  Nichols  v.  Walter,  8  Mass.  243.  In  the  last-mentioned  case,  how- 
ever, the  rule  was  enforced  under  circumstances  involving  much  hardship.  It 
appeared  that  the  plaintiff  purchased  the  property  for  $18.67  and  took  a  convey- 
ance from  the  defendant  with  covenant  of  seisin.  He  then  sold  and  conveyed 
the  premises  with  covenants  of  seisin  and  good  right  to  convey  (not  warranty,  at 
stated  in  Rawle  Covt.  [5th  ed.]  p.  224,  n.)  for  a  consideration  of  $113.33.  His 
grantee,  being  evicted,  recovered  against  him  as  damages  for  breach  of  the  cove- 
nant of  seisin,  $555.49,  the  value  of  the  property  at  the  time  of  eviction;  but 
plaintiff,  in  his  action  on  the  original  covenant  of  seisin,  was  adjudged  to  be 
entitled  only  to  the  consideration  paid  by  him  to  the  defendant,  $18.67,  upon  the 
ground  that  the  case  must  be  governed  by  the  Massachusetts  rule  of  damages  for 
a  breach  of  that  covenant. 

1  Post,  §  167. 

'Smith  v.  Strong,  14  Pick.  (Mass.)  128;  Byrnes  v.  Rich,  3  Gray  (Mass.), 
518. 

4  Ante,  5  109. 

*  If  the  covenantee's  title  be  perfected  by  the  Statute  of  Limitations  he  can 
recover  only  nominal  damages  for  a  breach  of  the  covenant  of  seisin.     Wilson  v. 
Forbes,  2  Dev.  (N.  C.)  30. 
18 


274  MARKETABLE  TITLE  TO  REAL  ESTATE. 

covenantee  can  recover  no  more  than  nominal  damages  for  a  breach 
of  the  covenant  of  seisin,  so  long  as  he  remains  in  the  undisturbed 
possession  of  the  estate.1  But  if  the  premises  are  in  the  possession 
of  an  adverse  claimant  at  the  time  of  the  grant,  the  covenantee 
may  recover  substantial  damages,  not  exceeding  the  purchase  money 
and  interest.2  Such  an  adverse  possession  amounts  also  to  a  con- 
structive eviction  and  operates  a  breach  of  a  covenant  of  warranty.5 
If,  before  suit  is  brought  by  the  covenantee  for  a  breach  of  the 
covenant,  the  defendant  gets  in  the  outstanding  title,  the  plaintiff 
can  recover  only  nominal  damages,  for  the  title  so  acquired  enures 
to  the  benefit  of  the  plaintiff.  If  the  paramount  title  should  be 
gotten  in  after  suit  had  been  commenced,  a  different  rule  would 
probably  apply.4 

If  the  covenantee  sues  and  recovers  nominal  damages  for  breach 
of  the  covenant  of  seisin,  the  judgment  will  be  no  bar  to  an  action 

1  Baxter  v.  Bradbury,  20  Me.  260 ;  37  Am.  Dec.  49.     Sable  v.  Brockmeier,  45 
Minn.  248;  47  N.  W.  Rep.  794;  Ogden  v.  Ball,  38  Minn.  237;  36  N.  W.  Rep. 
344.     Garfield  v.  Williams,  2  Vt.  328.     Hartford  Ore  Co.  v.  Miller,  41  Conn. 
133.     Nosier  v.  Hunt,  18  lo.  212;  Boon  v.  McHenry,  55  lo.  202;  7  N.  W.  Rep. 
503.    Collier  v.  Gamble,  10  Mo.  467,  472 ;  Bircher  v.  Watkins,  13  Mo.  521 ;  Cock- 
i-cll  v.  Proctor,  65  Mo.  41;  Holladay  v.  Menifee,  30  Mo.  App.  207.  Egan  y. 
Martin,  71  Mo.  App.  60;  79  Mo.  App.  676.     Metz  v.  McAvoy  Brewing  Co.,  98 
111.  App.  584;  Building  Co.  v.  Fray,  96  Va.  559;  32  S.  E.  58.    'Small  v.  Reeves, 
14  Ind.    164;   Hacker  v.  Blake,  17  Ind.  97;   Lacey  v.  Marman,  37  Ind.   168; 
Hannah  v.  Shields,  34  Ind.  272;  Stevens  v.  Evans,  30  Ind.  39;  McClerkin  v. 
Sutton,  29  Ind.  407;  Van  Nest  v.  Kellum,  15  Ind.  264;  Jordan  v.  Blackmore, 
20  Ind.  419.     O'Meara  v.  McDaniel,  49  Kans.  685;   31  Pac.  Rep.  303,  citing 
Hammerslough  v.   Hackett,  48  Kans.  700;   29  Pac.  Rep.    1079;    Danforth  v. 
Smith,  41  Kans.  146;  21  Pac.  Rep.  168.     (But  see  Bolinger  v.  Brake,  4  Kan*. 
App.  180;  45  Pac.  950.)     In  the  early  case  of  Harris  v.  Newell,  8  Mass.  622, 
it  was  held  that  if  the  covenantee  had  been  threatened  with  eviction,  and  if 
it  appear  that  he  must  inevitably  lose  the  estate,  he  may  recover  the  con- 
sideration money  as  damages  for  breach  of  the  covenant  of  seisin,  and  tha,t 
in  such  a  case  he  could  not  be  required  to  lie  by  until  he  was  actually  evicted; 
the  covenantor  might  in  the  meanwhile  become  insolvent,  and  the  remedy  on 
the  covenant  be  lost.     This  decision  does  not  appear  to  have  been  followed, 
though,  as  we  shall  see,  there  is  a  class  of  cases  which  decide  that,  under 
such  circumstances,  the  covenantee  may  detain  the  unpaid  purchase  money, 
if  any.     Post,  §  331.     It  seems  that  the  purchaser  is  permitted,  in  Michigan, 
to  recover  the  purchase-money  paid,  in  case  of  a  breach  of  the  covenant  of 
seisin,  though  he  has  not  been  disturbed  in  the  possession  of  the  premises. 
Parkinson  v.  Woulds,  125  Mich.  325;  84  N.  W.  292. 

2  Adkins  v.  Tomlinson,  121  Mo.  487.     This  rule,  of  course,  would  not  obtain 
in  those  States  in  which  a  sale  and  conveyance  by  the  vendor  when  out  of 
possession  is  deemed  champertous. 

•Post,  §  146. 

'Sayre  v.  Sheffield  Land  Co.,   (Ala.)    18  So.  Rep.  101.     As  to  the  right  of 


OF  THE  COVENANT  FOR  SEISIN.  275 

for  breach  of  the  covenant  of  warranty  if  he  should  be  afterwards 
evicted  by  the  person  having  the  better  title.1 

In  Missouri,  a  purchaser,  who  has  taken  a  conveyance  with  a 
covenant  of  seisin,  is  permitted,  upon  discovery  that  the  title  is 
bad,  to  buy  in  the  rights  of  all  adverse  claimants,  and  thus  to  en- 
title himself  to  recover  substantial  damages  for  the  breach  of  the 
covenant  to  the  extent  of  the  amount  so  paid,  with  interest,  pro- 
vided it  do  not  exceed  the  consideration  money  and  interest.2  This 
rule  has  been  criticised  upon  the  ground  that  it  confounds  all  dis- 
tinctions between  the  covenant  of  seisin  and  the  covenant  of  war- 
ranty. It  is  difficult  to  perceive  any  inconvenience  or  injustice 
that  could  result  from  the  rule,  provided  it  be  restricted  to  cases 
in  which  the  adverse  title  has  been  hostilely  asserted. 

If  the  breach  of  the  covenant  of  seisin  consist  in  the  want  of  the 
entire  quantity  of  estate  or  interest  purported  to  be  conveyed,  as  if 
the  interest  turns  out  to  be  a  life  estate  instead  of  a  fee,  the  cove- 
nantee  cannot  practically  rescind  the  contract  by  recovering  the 
entire  purchase  money  as  damages ;  he  must  keep  the  life  estate. 
In  other  words,  the  measure  of  his  damages  will  be  the  difference 
between  the  consideration  money  and  the  value  of  the  life  estate.3 
If  it  appear  that  title  to  a  part  of  the  land  has  failed,  the  plaintiff 
will  be  entitled  to  nominal  damages,  though  there  be  no  evidence  as 
to  the  value  of  such  part.4  Where  he  is  entitled  to  substantial  dam- 
ages for  a  loss  of  part  of  the  premises,  the  measure  thereof  will  be 
such  part  of  the  whole  consideration  paid  as  the  value  of  the  part 
at  the  time  of  purchase,  to  which  title  failed,  bears  to  the  whole  of 
the  premises,6  unless  the  contract  fixed  a  price  per  acre,  in  which 
case  the  measure  of  damages  is  the  contract  price  of  the  number 
of  acres  lost.6 

If  the  alleged  breach  of  the  covenant  of  seisin  consist  in  the 
want  of  title  to  minerals  under  the  soil,  it  is  competent  for  the 
covenantor  to  show,  in  mitigation  of  damages,  that  the  grantee 
purchased  with  knowledge  of  the  fact  that  there  had  been  a  pre- 
vious severance  of  the  title  in  respect  to  the  soil  and  the  minerals, 

the  covenantor  to  require  the  covenantee  to  accept  such  title  in  lieu  of  dam- 
ages, see,  post,  "Estoppel,"  §  215. 

'Donnell  v.  Thompson,  10  Me.  170;  25  Am.  Dec.  216.  Ogden  v.  Ball,  40 
Minn.  94:  41  N.  W.  Rep.  453. 

'Lawless  v.  Collier,  19  Mo.  480;  Hall  v.  Bray,  51  Mo.  288;  Ward  v.  Ash- 
brook,  78  Mo.  517.  Schnelle  Lumber  Co.  v.  Barlow,  34  Fed.  Rep.  853. 

'Tanner  v.  Livingston,  12  Wend.  (N.  Y.)  83.  Pinkston  v.  Huie,  9  Ala. 
252,  259.  Post,  §  170. 

« Lawless  v.  Evans,   (Tex.)    14  S.  W.  Rep.  1019. 

•McLennan  v.  Prentice,   (Wis.)   55  N.  W.  Rep.  764. 

•Conklin  v.  Hancock,  67  Ohio  St.  455;  66  N.  E.  518. 


276  MARKETABLE  TITLE  TO  REAL  ESTATE. 

and  that  the  consideration  paid  was  merely  for  the  land  without 
the  minerals.1 

§  117.  BURDEN  OF  PROOF.  In  an  action  on  a  covenant  of 
seisin  the  burden  of  proof  has  generally  been  held  to  lie  with  the 
defendant,  the  grantor,  to  show  that  the  title  is  such  as  his  covenant 
requires  ;2  but  there  is  a  conflict  of  authority  upon  the  point,  some 
cases  holding  that  the  burden  is  on  the  plaintiff  to  show  that  the 
covenant  has  been  broken,  since  it  is  to  be  presumed  that  he  has 
knowledge  of  the  facts  constituting  the  breach  of  the  covenant,  and 
that  there  can  be  no  hardship  in  requiring  him  to  prove  them.*  The 
weight  of  authority  probably  is  that  the  burden  is  on  the  defendant, 
and  the  rule  results  from  a  strictly  technical  adherence  to  that  other 
rule,  that  the  plaintiff  may  allege  a  breach  by  merely  negativing  the 

1  Lloyd  v.  Sandusky,  203  111.  621;   68  N.  E.   154. 

1  Bradshaw's  Case,  9  Coke  R.  60.  Abbott  v.  Allen,  14  Johns.  (N.  Y.)  248; 
7  Am.  Dec.  554.  Bircher  v.  Watkins,  13  Mo.  521;  Cockrell  v.  Proctor,  65  Mo. 
41.  Beckmann  v.  Hcnn,  17  Wis.  412;  Eaton  v.  Lyman,  30  Wis.  41;  McClennan 
v.  Prentice,  77  Wis.  124;  45  N.  W.  Rep.  943.  Swafford  v.  Whipple,  3  Gr. 
(lo.)  261;  54  Am.  Dec.  498;  Schofield  v.  Homestead  Co.,  32  Iowa,  317;  7 
Am.  Rep.  197;  Blackshire  v.  Homestead  Co.,  39  Iowa,  624;  Barker  v.  Kuhn, 
38  lo-wa,  392.  Marston  v.  Hobbs,  2  Mass.  433;  3  Am.  Dec.  61.  The  reason 
given  for  the  rule  thus  stated  is  that  the  grantor  is  presumed  to  have  re- 
tained the  evidences  of  his  title,  and,  consequently,  that  the  facts  constitut- 
ing a  defect  in  his  title  must  lie  peculiarly  within  his  knowledge.  1  Stark. 
Ev.  418,  423;  Abbott  v.  Allen,  14  Johns.  (N.  Y.)  253;  7  Am.  Dec.  554; 
Swafford  v.  Whipple,  3  Gr.  (lo.)  265;  54  Am.  Dec.  498;  Wooley  v.  New- 
combe,  87  N.  Y.  805.  This  is  doubtless  true  of  the  English  practice  where 
the  grantor  has  conveyed  only  a  portion  of  his  estate,  but  in  America,  where 
a  general  system  of  registration  of  conveyances  and  incumbrances  and,  gen- 
erally, of  all  documentary  matter  affecting  the  title  prevails,  there  would 
seem  to  be  no  reason  to  presume  that  the  grantor  is  better  informed  as  to  the 
state  of  the  title  than  the  grantee. 

'Ingalls  v.  Eaton,  25  Mich.  32,  the  court,  by  COOLEY,  J.,  saying:  "Where 
parties  contract  concerning  lands  on  the  assumption  that  one  of  them  is  the 
owner,  it  is  a  reasonable  presumption  that  they  have  first  satisfied  them- 
selves by  inquiry  what  the  title  is;  and  if  a  defect  comes  to  their  knowledge 
afterwards,  the  party  complaining  of  it  should  point  it  out."  The  decision 
was  also  rested  larprely  upon  a  statutory  provision  that  the  general  issue  is  a 
denial  of  the  plaintiff's  cause  of  action,  and  calls  upon  him  to  prove  it.  No 
question  was  raised  as  to  the  sufficiency  of  the  plaintiff's  assignment  of  the 
breach,  which  was  in  general  terms,  negativing  the  words  of  the  covenant. 
The  court  cited  as  sustaining  their  view  "Brown  v.  Bellows,  4  Pick.  (Mass.) 
193;  Snevilly  v.  Egle,  1  W.  &  S.  (Pa.)  480;  Martin  v.  Hammon,  8  Pa.  St. 
270;  Espy  v.  Anderson,  14  Pa.  St.  312;  Dwight  v.  Cutler.  3  Miss.  566;" 
64  Am.  Dec.  105.  See,  also,  Peck  v.  Houghtaling,  35  Mich.  132.  Landt  v. 
Mayor,  (Colo.)  31  Pac.  Rep.  524.  Clapp  v.  Herdmann,  25  111.  App.  509. 
In  Wooley  v.  Newcombe,  87  N.  Y.  605,  it  was  held  that  under  the  Code  of 


OF  THE  COVENANT  FOE  SEISIN.  277 

words  of  the  covenant.1  When  the  purchaser  obtains  an  injunction 
against  the  collection  of  purchase  money  due  by  him,  the  burden  is 
on  him  to  show  that  the  title  is  bad.2  So,  also,  in  an  action  for  the 
purchase  money  in  which  he  sets  up  the  defense  of  failure  of  title.8 
So  long  as  the  parties  are  allowed  to  arrive  at  an  issue  by  merely  af- 
firming on  the  one  side  and  denying  on  the  other  the  words  of  the 
covenant,  it  is  difficult  to  perceive  upon  what  principle  the  burden  of 
proof  can  be  adjusted,  other  than  that  which  casts  the  burden  on  him 
who  has  the  affirmative  of  the  issue.  No  difficulty  can  arise  in  fix- 
ing the  burden  of  proof  in  an  action  for  breach  of  the  covenant  for 
warranty,  for  the  plaintiff  must  allege  that  he  was  evicted,  and  it 
devolves  on  him  to  prove  that  fact ;  nor  in  an  action  for  breach  of 
the  covenant  against  incumbrances,  for  he  must  set  out  the  incum- 
brance  constituting  the  breach  and  prove  its  existence.  But  with 
respect  to  an  action  for  breach  of  the  covenant  of  seisin,  it  may  bo 
doubted  whether  an  equitable  disposition  of  the  burden  of  proof 
can  be  made  upon  the  mere  allegation  that  the  defendant  was  or  was 
not  seised  of  such  an  estate  as  his  covenant  describes.  Defects  of 
title  consist  in  the  existence  or  non-existence  of  particular  facts, 
and  to  rule  arbitrarily  from  this  form  of  pleading  that  the  burden 
of  proof  was  upon  the  one  party  or  the  other  would  be  in  some  cases 
to  require  the  defendant,  and  in  others  the  plaintiff,  to  prove  a  ne- 
gative ;4  that  is,  the  non-existence  of  a  particular  fact.  A  solution  of 

Civil  Procedure  of  that  State,  providing  that  issue  might  be  joined  by  service 
of  an  answer  to  the  complaint,  dispensing  witli  a  replication,  the  plaintiff,  in 
an  action  on  a  covenant  of  seisin,  assumed  the  burden  of  proving  the  breach 
alleged  by  him,  that  is,  that  the  defendant  was  not  seised  of  an  indefeasible 
estate  in  fee  simple. 

'Mecklem  v.  Blake,  16  Wis.  102;  83  Am.  Dec.  707.  It  has  been  held  that 
if  the  defendant  plead  that  he  has  not  broken  his  covenant,  the  plaintiff  by 
his  joinder  avers  that  he  has,  and  therefore  assumes  the  burden  of  proving 
that  allegation.  Montgomery  v.  Reed,  69  Me.  513;  Boothbay  v.  Hathaway, 
20  Me.  251.  Bacon  v.  Lincoln,  4  Cush.  (Mass.)  212;  50  Am.  Dec.  765.  But 
as  such  an  averment  is  no  more  in  effect  than  an  allegation  that  the  de- 
fendant was  not  seised  as  he  had  covenanted,  these  decisions  would  seem  to 
fall  within  the  observation  of  Mr.  Greenleaf  that  in  disposing  the  burden  of 
proof  regard  must  be  had  to  the  substance  and  effect  of  the  issue  rather  than 
to  the  form  of  u;  for  in  many  cases  the  party,  by  making  a  slight  change  in 
his  pleading,  may  give  the  issue  a  negative  or  affirmative  form  at  his 
pleasure.  1  Greenl.  Ev.  (Redf.  ed.)  §  74. 

'Grantland  v.  Wight,  5  Munf.  (Va.)  295.    Lewis  v.  Bibb,  Port.  (Ala.)   84. 

•Stokely  v.  Trout,  3  Watts  (Pa.),  163.  Sawyer  v.  Vaughan.  25  Me.  337. 
Breithaupt  v.  Thurmond,  3  Rich.  (S.  C.)  216.  Zerfing  v.  Seelig.  14  S.  Dak. 
203;  85  N.  W.  585. 

4  Tkus,  if  the  burden  was  held  to  be  upon  the  defendant,  grantor,  he  would, 
if  the  objection  to  the  title  was  the  existence  of  a  prior  conveyance,  be  required 
to  prove,  negatively,  that  no  such  conveyance  existed ;  and  if  held  to  be  upon  the 
plaintiff,  grantee,  and  the  objection  was  that  the  defendant's  claim  of  title  by 


278  MARKETABLE  TITLE  TO  REAL  ESTATE. 

the  difficulty  would  apparently  be  reached  by  requiring  the  plaintift 
to  set  out  in  his  pleadings  the  facts  constituting  the  breach  of  the 
covenant,  so  that  the  parties  might  arrive  at  a  specific  and  well- 
defined  issue  of  fact,  in  respect  to  which  the  court  could  have  no 
difficulty  in  adjusting  the  burden  of  proof.1 

§  118.  PLEADING.  At  common  law,  the  plaintiff,  in  alleging  a 
breach  of  the  covenant  of  seisin,  merely  negatives  the  words  of  the 
covenant ;  it  is  not  necessary  that  he  shall  set  out  in  his  declaration 
the  facts  constituting  the  breach.2  The  same  form  of  pleading  has 
been  held  a  sufficient  compliance  with  a  statutory  provision  that  the 
plaintiff's  complaint  shall  contain  a  statement  of  his  cause  of  action.3 

descent  could  not  be  sustained,  the  burden  would  be  upon  him  to  show  that  the 
defendant,  or  his  predecessor  in  title,  was  not  the  heir;  all  of  which  would  seem 
to  be  in  direct  contravention  of  the  rule  that  the  burden  of  proof  is  upon  him 
who  has  substantially  the  affirmative  of  an  issue.  These  observations  are  borne 
out  by  the  case  of  Wilson  v.  Parshall,  129  N.  Y.  223;  29  K  E.  Rep.  297.  There 
the  plaintiff  claimed  that  the  deed  under  which  the  defendant  (grantor)  held  was 
in  fact  a  mortgage  and  not  a  conveyance  of  an  indefeasible  estate  in  fee  simple, 
and  it  was  held  that  the  burden  devolved  on  the  plaintiff  to  show  not  only  that 
the  deed  was  in  fact  a  mortgage,  but  that  it  was  actually  intended  as  such. 

1  This  seems  to  have  been  feasible  under  the  common-law  system  of  pro- 
cedure, by  means  of  the  replication  and  other  successive  pleadings  tending  to  the 
production  of  an  issue;  but  in  those  States  in  which  the  defendant  is  allowed  to 
join  issue  by  service  of  an  answer  to  the  complaint  would  be  impracticable,  unless 
the  plaintiff  were  required  to  set  out  in  his  complaint  the  facts  constituting  the 
breach  of  covenant,  or  to  furnish  the  defendant  with  such  a  statement  of  the 
particulars  of  his  claim  as  would  enable  him  to  frame  his  defence. 

1  Abbott  v.  Allen,  14  Johns.  (N.  Y.)  252;  7  Am.  Dec.  554;  Rickert  v.  Snyder,  9 
Wend.  (N.  Y.)  421.  Bacon  v.  Lincoln.  4  Gush.  (Mass.)  212;  50  Am.  Dec.  765. 
Floom  v.  Beard,  8  Blackf.  (Ind.)  76;  Truster  v.  Snelson,  29  Ind.  96.  Montgomery 
v.  Reid,  69  Me.  513;  Blanchard  v.  Hoxie,  34  Me.  376.  Bender  v.  Fromberger, 
4  Dall.  (Pa.)  438.  Pringle  v.  Witten,  1  Bay  (S.  C.),  254;  1  Am.  Dec.  612. 
Bircher  v.  Watkins,  13  Mo.  523.  Socum  v.  Haun,  36  Iowa,  138.  Koepke  v. 
Winterfield,  116  Wis.  44;  92  N.  W.  437. 

•Wooley  v.  Newcombe,  87  N.  Y.  605.  The  intimation  contained  in  Rawle  on 
Covenants  for  Title  (5th  ed.),  §  64,  that  in  New  York  and  Michigan  it  is  necessary 
for  the  plaintiff  in  an  action  for  breach  of  covenant  of  seisin  to  set  out  the  facts 
constituting  the  breach  with  sufficient  particularity  to  enable  the  defendant  to 
frame  his  defense,  seems  to  be  scarcely  sustained  by  the  cases  cited.  In  the  first, 
Wooley  v.  Newcombe,  87  N.  Y.  605,  it  was  expressly  held  that  the  complaint 
merely  negativing  the  words  of  the  covenant  was  sufficient.  In  the  other  cases, 
Ingalls  v.  Eaton,  25  Mich.  32,  and  Peck  v.  Houghtaling,  35  Mich.  127,  the  decla- 
ration was  in  .precisely  the  same  form,  and  no  question  was  raised  as  to  its  suffi- 
ciency,  the  court  holding  that  the  burden  of  proving  facts  constituting  a  breach 


OF  THE  COVENANT  FOB  SEISIN.  279 

The  defendant,  at  common  law,  having  filed  a  plea  of  seisin  to  the 
declaration,  might,,  it  seems,  require  the  plaintiff  to  set  forth  in  hig 
replication  the  particulars  of  the  breach.1  Thus,  it  seems  to  have 
been  possible  at  common  law  to  develop  by  the  pleadings  the  facts 
conceived  by  the  plaintiff  to  be  a  breach  of  the  covenant,  and  to 
join  issue  upon  the  existence  of  those  facts,  or,  the  facts  themselves 
being  admitted,  to  determine  on  demurrer  whether  they  were  suffi- 
cient for  the  purposes  alleged.  The  same  result,  it  appears,  may  be 
attained  under  the  code  system  of  civil  procedure  by  requiring  the 
plaintiff  to  set  out  the  particulars  of  his  claim  more  fully  than  they 
appear  in  his  complaint.2 

of  the  covenant  devolved  on  the  plaintiff,  without  adverting  to  any  question  of 
pleading  in  the  cause.  But  whether  such  a  rule  (requiring  the  plaintiff  to  state 
the  particulars  of  the  breach)  is  or  is  not  to  be  deduced  from  the  cases  cited,  it 
will  scarcely  be  denied  that  it  would  tend  greatly  to  a  more  rapid  and  convenient 
determination  of  the  rights  of  the  parties.  As  was  said  in  Ingalls  v.  Eaton, 
supra,  there  can  be  no  hardship  in  requiring  the  plaintiff  to  introduce,  in  the  first 
place,  evidence  of  the  defects  of  which  he  complains,  neither,  it  would  seem, 
could  there  be  any  hardship  in  requiring  him  to  set  out  the  defects  in  the  com- 
plaint, as  was  done  by  the  plaintiff  voluntarily  in  Sedgewick  v.  Hollenbeck,  7 
Johns.  (N.  Y.)  380,  when  the  common-law  system  of  pleading  prevailed  in  the 
State  of  New  York,  and  as  was  assumed  to  be  his  duty  in  Potter  v.  Kitchen,  5 
Bosw.  (N.  Y.)  571,  under  a  provision  of  the  Code  that  the  complaint  must  con- 
tain a  statement  of  the  plaintiff's  cause  of  action. 

1  Marston  v.  Hobbs,  2  Mass.  433;  3  Am.  Dec.  61.  "Wooley  v.  Newcombe,  87  N. 
if.  605,  612,  where  it  is  said  that  if  the  common-law  system  of  pleading  still  pre- 
vailed in  the  State  of  New  York,  the  plaintiff,  in  replying  to  the  plea  of  seisin, 
would  doubtless  be  required  to  state,  as  in  other  actions  on  covenants,  the  par- 
ticulars of  the  breach,  and  thus  assume  the  affirmative.  For  instances  in  which 
the  plaintiff  set  out  the  facts  constituting  the  breach,  see  Sedgewick  v.  Hollen- 
beck, 7  Johns.  (N.  Y.)  380;  Kennedy  v.  Newman,  1  Sandf.  (N.  Y.  S.  C.)  187,  and 
the  comments  on  that  casein  Potter  v.  Kitchen,  5  Bosw.  (N.  Y.  S.  C.)  566. 

*  Wooley  v.  Newcombe,  87  N.  Y.  605,  612,  the  court  saying:  "  The  allegations 
that  the  defendant  was  not  the  true  owner,  and  was  not  seised  of  the  premises  in 
fee,  were  allegations  of  matters  of  fact.  It  was  not  necessary  to  the  sufficiency 
of  the  complaint  that  the  title  should  be  set  out  in  detail.  If  the  particulars  of 
the  defects  complained  of  are  required  to  enable  the  defendant  to  defend,  they 
must  be  obtained  in  some  of  the  modes  provided  by  the  Code." 


CHAPTER  XIII. 

COVENANT  AGAINST  INCUMBRANCES. 

FORM.   §  119. 

RESTRICTIONS  AND  EXCEPTIONS.      §   120. 

Parol  agreements.     §  121. 

Conveyance  "  sudject  to "  incumbrance.     §   121-a. 
WHAT  CONSTITUTES  BBEACH.      §  122. 

Definition  of  incumbrance.      §  123. 

Pecuniary  charges  and  liens.     Effect  of  notice.     §  124. 

Outstanding  interest  less  than  a  fee.      §  125. 

Easements  or  physical  iucumbrances.      §   126. 

Notice  of  easement  at  time  of  purchase.       §   127. 
ASSIGNABILITY  OF  THIS  COVENANT.      §   128. 
MEASURE  OF  DAMAGES. 

General  rules.      §   129. 

Where  covenantee  discharges  the  incumbrance.      §  130. 

Damages  cannot  exceed  purchase  money  and  interest.     §  131. 

Where  incumbrance  is  permanent.      §  132. 
PLEADING  AND  PBOOF.      §   133. 

§  119.  FORM  AND  EFFECT.  The  covenant  against  incum- 
brances  as  used  in  America  is  either  general,  namely,  "that  the 
premises  are  free  from  incumbrances,"1  or  special,  "  that  the  prem- 
ises are  free  from  incumbrances  done,  suffered  or  committed  by  " 
the  grantor.2  In  England  this  covenant  is  usually  expressed  as  a 
part  of  the  covenant  for  quiet  enjoyment,  namely,  that  the  grantor 

'Rawle  Covts.  for  Title  (5th  ed.),  p.  29,  n.  The  court  will  supply  mere 
clerical  omissions  in  the  covenant,  such  as  the  word  "  himself  "  in  the  clause 
"for  himself,  his  heirs,"  etc.  Judd  v.  Randall,  36  Minn.  12;  29  N.  W.  Rep. 
589.  Stanley  v.  Goodrich,  18  Wis.  505;  Hilmert  v.  Christian,  29  Wis.  104. 
Smith  v.  Lloyd,  29  Mich.  382.  Contra,  Bowne  v.  Wolcott,  (N.  Dak.)  48  N.  W, 
Rep.  426,  citing  Rufner  v.  McConnell,  14  111.  168;  Thayer  v.  Palmer,  86  111. 
477,  and  saying  that  the  remedy  of  the  grantee  is  in  equity  if  the  omission  was 
by  mistake.  A  covenant  to  warrant  and  defend  "  against  all  persons  whomso- 
ever, and  all  claims  whatsoever,"  is  a  covenant  against  incumbrances  as  well 
as  a  covenant  of  warranty.  Incumbrances  are  claims,  and  a  covenant  against 
all  "  claims "  will  include  incumbrances.  Johnson  v.  Hollensworth,  48 
Mich.  140. 

2  Where  the  covenant  against  incumbrances  is  special,  the  grantor  cannot,  of 
course,  be  held  liable  for  incumbrances  not  created  by  himself,  e.  g.,  taxes 
assessed  upon  the  property  before  he  became  owner.  Jackson  v.  Sassaman,  29 
Pa.  St.  106.  But  taxes  paid  by  the  grantor  constitutes  a  breach  of  the  cov- 


COVENANT    AGAINST    INCUMBRANCES.  281 

shall  quietly  enjoy  the  premises,  "  and  that  free  from  inourn- 
brances."  JEn  some  of  the  States  the  covenant  of  general  warranty 
is  construed  to  include  a  covenant  against  incumbrances,3  and  in 
other  States  the  latter  covenant  is  by  statute  implied  from  the  use 
of  the  words  "  grant,  bargain  and  sell  "4  in  the  granting  part  of  a 
conveyance.  Such  a  covenant  so  implied  is  not  limited  or  re- 
strained by  an  express  covenant  of  special  warranty  contained  in 
the  same  deed.5 

The  covenant  against  incumbrances  must  not  be  confounded 
with  a  covenant  to  discharge  existing  incumbrances,  or  to  do  a 
particular  thing  in  exoneration  of  the  covenantee,  or  to  indemnify 
him  against  a  particular  liability.  Such  a  covenant  is  broken  as 
soon  as  the  failure  to  exonerate  the  covenantee,  or  to  discharge  the 

enant  against  incumbrances  created  by  himself.  Milot  v.  Reed,  (Mont.)  29 
Pac.  Rep.  343.  The  covenant  against  incumbrances  implied  from  the  words 
"  grant,  bargain  and  sell,"  covers  taxes  due  by  the  covenantor's  grantor,  as 
well  as  those  due  by  the  covenantor  himself.  Shaffer  v.  Greer,  87  Pa.  St.  370; 
Large  v.  McLain,  (Pa.  St.)  7  Atl.  Rep.  101.  Taxes  assessed  upon  the  premises 
after  a  conveyance  by  a  prior  owner  constitute  no  breach  of  a  covenant  against 
any  claim  or  demand  of  any  person  claiming  by,  through  or  under  such  prior 
owner.  West  v.  Spaulding,  11  Met.  (Mass.)  556.  Where  a  widow  and  sole 
heir  of  an  intestate  quit  claimed  their  interest  in  a  part  of  his  realty,  coven- 
anting that  if  any  claim  against  the  estate  should  not  be  paid  and  should 
become  a  lien  on  the  premises,  they  would  pay  it,  it  was  held  that  a  right  of 
way  across  the  premises  was  not  within  the  meaning  of  this  covenant.  Marsh 
v.  Fish,  66  Vt.  213. 

•Jeter  v.  Glenn,  9  Rich.  L.  (S.  C.)  374.  Contra  in  Virginia,  Wash  City  Sav. 
Bank  v.  Thornton,  83  Va.  157;  2  S.  E.  Rep.  193;  and  in  New  York;  Boveel 
v.  Lawton,  90  N.  Y.  293 ;  Hebler  v.  Brown,  40  N.  Y.  Supp.  441. 

4Moseley  v.  Hunter,  15  Mo.  322.  Rotan  v.  Hays,  (Tex.  Civ.  App.)  77  S.  W. 
654.  Warren  v.  Stoddart,  (Idaho)  59  Pac.  Rep.  540.  In  Alabama  the 
words  "  grant,  bargan  and  sell "  imply  only  a  covenant  against  incum- 
brances created  by  the  grantor.  Parker  v.  Parker,  (Ala.)  9  So.  Rep. 
426;  Hood  v.  Clark,  (Ala.)  37  So.  550;  Heflin  v.  Phillips,  96  Ala. 
561,  11  So.  729.  A  covenant  against  incumbrances  implied  from  the  words 
"convey  and  warrant"  is  of  the  same  force  and  effect  as  if  expressed  at  full 
length  in  the  deed.  Kent  v.  Cantrall,  44  Ind.  452;  Dalton  v.  Taliaferro,  101 
111.  App.  592.  A  statute  in  the  State  of  Washington  provides  that  the 
words  "  convey  and  warrant  "  in  a  deed  shall  be  construed  to  include  a  cov- 
enant against  incumbrances.  But  if  the  grantor,  instead  of  using  the  word?, 
insert  the  usual  formal  covenant  of  warranty,  such  covenant  will  not  be 
construed  to  include  a  covenant  against  incumbrances.  Leddy  v.  Enos. 
(Wash.)  33  Pac.  Rep.  508. 

"Funk  v.  Voneida,  1 1  S.  &  R.  (Pa.)   109;  14  Am.  Dec.  617. 


282  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

incumbrance,  or  to  indemnify  against  the  liability  occurs,  and  a 
right  to  substantial  damages  immediately  accrues  thereupon  with- 
out alleging  or  proving  any  special  damage.* 

If  the  covenant  be  by  several  persons  it  will  be  construed  to 
extend  to  several  as  well  as  joint  incumbrances.7 

§  120.  RESTRICTIONS  AND  EXCEPTIONS.  The  covenant 
against  incumbrances  may,  of  course,  be  restricted  to  some  particu- 
lar incumbrance,  or  to  the  acts  of  some  particluar  person,  or  a 
particular  incumbrance  may  be  excepted  from  the  operation  of  the 

•Lethridge  v.  Mytton,  2  B.  &  Ad.  772.  Here  the  covenant  was  to  discharge 
incumbrances  on  the  granted  premises  tg  the  extent  of  £19,000,  and,  there  having 
been  a  breach,  judgment  for  £19,000  was  entered  for  the  plaintiff,  though  it  was 
not  alleged  or  proved  that  he  had  been  damnified  by  the  breach.  The  court, 
hov/ever,  observed  that  the  defendant  might,  if  he  thought  fit,  go  into  a  court 
of  equity  for  an  injunction  against  the  judgment,  but  did  not  intimate  an 
opinion  as  to  whether  the  injunction  could  be  sustained.  Terrett  v.  Brooklyn 
Imp.  Co.,  87  X.  Y.  92.  But  see  Aberdeen  v.  Blackmar,  6  Hill  (N.  Y.),  324, 
where  it  was  held  that  on  a  covenant  to  indemnify  and  save  harmless,  plaintiff 
must  show  that  he  has  been  actually  damnified.  Gardner  v.  Xiles,  16  Me. 
280,  obiter,  the  incumbrance  having  been  actually  enforced  against  the  cov- 
cnantee.  Gennings  v.  Norton,  35  Me.  309,  action  on  bond  by  grantor  to 
indemnify  against  a  particular  incumbrance.  Hartley  v.  Gregory,  9  Neb.  279. 
Mr.  Rawle  (Covts.  for  Title  [5th  ed],  §  74)  cites  several  cases  to  the  propo- 
sition in  the  text,  which,  upon  examination,  appear  to  have  been  actions 
upon  agreements  by  the  grantee  to  discharge  an  incumbrance  out  of  the  pur- 
chase money.  Williams  v.  Fowle,  132  Mass.  385;  Furnas  v.  Durgin,  119 
Mass.  500;  20  Am.  Rep.  341.  Dorsey  v.  Dashiell,  1  Md.  204.  Trinity  Church 
v.  Higgins,  48  N.  Y.  532,  and  others.  The  equity  of  this  application  of  the 
rule  is  plainly  apparent,  inasmuch  as  a  failure  to  discharge  the  incumbrance 
is  in  substance  a  failure  to  pay  part  of  the  purchase  money.  Such  a  delin- 
quency would  appear  to  require  a  sterner  rule  of  damages  than  one  in  which 
the  grantor  had  failed  to  provide  an  indeminty  against  a  loss  which  had  not 
as  yet  occurred.  Mr.  Sedgwiek  has  criticised  the  rule  stated  in  the  text. 
Sedg.  Measure  of  Dam.  182.  A  contract  of  indemnity  against  liability  is  held 
to  be  broken  as  soon  as  the  liability  occurs,  and  the  measure  of  damages  ia 
the  full  amount  of  such  liability.  Webb  v.  Pond,  19  Wend.  (N.  Y.)  423; 
Rockefeller  v.  Donelly,  8  Cow.  (N.  Y.)  623;  Chace  v.  Hinman,  8  Wend. 
(X.  Y.)  452:  24  Am.  Dec.  39.  But  where  the  obligation  is  that  the  party 
indemnified  shall  not  sustain  damage  or  molestation  by  reason  of  the  acts  or 
omissions  of  another  or  by  reason  of  any  liability  incurred  through  such  acts 
or  omissions,  there  is  no  breach  until  actual  damage  is  sustained.  Gilbert  v. 
Wyman,  1  Comst.  (X.  Y.)  563;  49  Am.  Dec.  359.  A  covenant  to  indemnify 
and  save  harmless  from  a  particular  incumbrance  is  broken  as  soon  as  the 
grantee's  title  is  extinguished  by  foreclosure.  Dana  v.  Goodfellow,  (Minn.) 
53  N.  W.  Rep.  656. 
TDuval  v.  Craig,  2  Wh.  (U.  S.)  45. 


COVENANT    AGAINST    INCUMBKAXCES.  283 

covenant.8  When  such  a  restriction  or  exception  is  expressed  in 
the  conveyance  in  clear  and  unambiguous  terms,  no  difficulty  will 
arise  in  the  construction  of  the  instrument,  or  in  determining 
whether  there  has  been  a  breach  of  the  covenant.  But  much  litiga- 
tion has  resulted  from  agreements  of  that  character  resting  alto- 
gether in  parol,  or  from  the  use  of  obscure  and  ambiguous  terms  in 
the  conveyance  with  respect  to  a  particular  incumbrance  adverted 
to  by  the  parties.9 

§  121.  Parol  agreements.  It  may  be  stated,  as  a  general  rule, 
that  where  a  conveyance  containing  a  covenant  against  iucum- 
brances  has  been  executed  by  the  seller  and  accepted  by  the  pur- 
chaser, evidence  of  any  contemporaneous  parol  agreement  that 
such  covenant  should  not  extend  to  a  particular  incumbrance,  or 
that  the  grantee  should  assume  and  pa^  off  a  particular  incum- 
brance embraced  by  the  covenant,  will  not  be  received  in  an  action 
for  the  breach  of  such  covenant.10  IsTor  will  such  evidence  be  re- 
ceived, where  the  conveyance  was  without  covenants  for  title,  to 
show  that  the  grantor  orally  agreed  to  discharge  and  pay  off  an  in- 

'In  Duroe  v.  Evans,  101  (Iowa)  358;  70  N.  W.  610,  the  deed,  after  reciting 
that  it  was  subject  to  two  mortgages,  contained  a  covenant  in  print,  that  the 
premises  were  free  from  all  incumbrances,  followed  by  the  written  words 
"  except  as  above  "  and  a  printed  special  warranty  to  defend  against  all  per- 
sons, followed  by  the  written  words  "  in,  through,  or  by  us."  It  was  held  that 
the  special  warranty  did  not  limit  the  general  covenant  against  incumbrances, 
and  that  the  grantee  had  a  right  of  action  upon  the  existence  of  a  mortgage 
other  than  the  two  named  in  the  general  incumbrance  clause.  In  a  case  in 
which  the  covenant  excepted  a  mortgage  for  a  named  sum,  and  it  appeared 
that  there  were  two  mortgages  instead  of  one,  the  two  aggregating  that  sum, 
it  was  held  that  the  covenant  excepted  both  mortgages.  Baker  v.  Bradt,  168 
Mass.  58 ;  46  N.  E.  409. 

•In  Smith  v.  Abington  Sav.  Bank,  165  Mass.  285;  42  N.  E.  1133,  it  was 
held  that  the  exception  of  "  the  taxes  assessed  for  the  year  1893,"  from  the 
covenant  against  incumbrances,  did  not  include  an  assessment  for  the  con- 
struction of  a  sewer,  and  that  the  grantor  was  liable  on  his  covenant  for 
such  assessment.  The  court  said  the  exception  indicated  the  common  annual 
taxes  for  a  particular  year  and  nothing  else,  and  it  was  immaterial  that  the 
power  to  levy  the  sewer  assessment  falls  under  the  general  power  of  taxation. 

10  Buckner  v.  Street,  5  McCrary  (C.  C.) ,  59.  Raymond  v.  Raymond,  10  Cush. 
(Mass.)  141;  Howe  v.  Walker,  4  Gray  (Mass.),  318;  Button  v.  Gerish,  9  Cush. 
(Mass.)  94;  55  Am.  Dec.  45;  Flynn  v.  Bourneuf,  143  Mass.  277;  58  Am.  Rep. 
1S5;  Simanovich  v.  Wood,  145  Mass.  180;  13  N.  E.  Rep.  391.  Suydam  v. 


284  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

cumbrance  upon  the  premises.11  Such  a  case  is  not  within  tiie  rule 
which  permits  the  true  consideration  of  a  written  agreement  to  be 
shown  by  parol.  But  where  the  conveyance  was  "  subject  to  mort- 
gage "  parol  evidence  was  admitted  to  show  that  the  grantee  as- 
sumed payment  of  the  mortgage ;  in  such  case  the  evidence  is  ad- 
mitted, not  as  supplying  a  new  term  of  the  contract,  but  as  ex- 
planatory of  a  doubtful  expression  employed  by  the  parties.12  And 
parol  evidence  will  be  received  to  show  that  the  grantee  was,  in 
fact,  indemnified  against  a  particular  incumbrance,  as  where  other 
land  had  been  conveyed  to  him  in  satisfaction  of  an  existing  mort- 
gage on  the  premises.18  Modifications  of  the  foregoing  general  rule 
have  been  announced  in  several  cases,  which  are  difficult  to  be  rec- 
onciled with  that  rule.  Thus  it  has  been  said  that  parol  evidence 
will  be  received,  not  to  contradict  the  terms  of  a  written  warranty, 
but  to  show  that  the  propery  was  taken  by  the  purchaser  subject  to 
incumbrances  which  he  knew  to  exist  at  the  time  of  the  purchase, 
though  not  mentioned  in  the  deed,  and  though  there  was  a  warranty 
against  incumbrances.14  The  rule  excluding  parol  evidence  to  show 
an  exception  from  a  covenant  against  incumbrances  does  not  apply 

.Tones,  10  Wend.  (N.  Y.)  185;  25  Am.  Dec.  552.  Johnson  v.  Walton,  60  Iowa, 
315;  14  N.  W.  Rep.  325.  Edwards  v.  Clark,  83  Mich.  246;  47  X.  W.  Rep.  112. 
Bingham  v.  Bingham,  57  Tex.  238.  McKennan  v.  Doughman.  1  Pen.  &  W. 
(Pa.)  417.  Grice  v.  Scarborough,  2  Spear  L.  (S.  C.)  650;  42  Am.  Dec.  391. 
Long  v.  Moler,  5  Ohio  St.  272.  McClure  v  Campbell,  (Neb.)  40  N.  W.  Rep. 
595.  The  grantor  cannot  show  that  the  grantee  knew  of  the  adverse  claim 
under  which  he  was  evicted,  and  that  it  was  agreed  between  the  parties  that 
the  grantor  should  not  be  charged  if  the  grantee  should  be  evicted.  Townsend 
v.  Weld,  8  Mass.  146. 

Where  the  grantor  expressly  covenanted  against  tax  liens,  parol  evidence 
was  held  not  admissible  to  show  an  oral  agreement  by  the  grantee,  before  the 
execution  of  the  deed,  to  pay  off  a  tax  lien  to  which  his  attention  was  called. 
Reagle  v.  Dennis.  (Kan.  App.)  55  Pac.  469. 

Parol  evidence  that  the  grantee  assumed  the  payment  of  taxes  on  the  land, 
as  a  part  of  the  purchase  price,  is  admitted  in  Indiana.  Carver  v.  Louthain, 
38  Ind.  530. 

"Howe  v.  Walker,  4  Gray  (Mass.),  318.  Duncan  v.  Blair,  5  Den.  (N.  Y.) 
196.  McLeod  v.  Skiles,  81  Mo.  595. 

"Aufricht  v.  Northrup,  20  Iowa,  61. 

"Johnston  v.  Markle  Paper  Co.,  153  Pa.  St.  189;  25  All.  Rep.  560. 

"Sidders  v.  Riley,  22  111.  110,  diet.,  citing  Allen  v.  Lee,  1  Ind.  58:  48.  Am. 
Dec.  352.  Leland  v.  Stone,  10  Mass.  459.  Pitman  v.  Connor.  27  Ind.  337.  It  is 
submitted,  with  diffidence,  that  such  evidence  does  contradict  the  warranty. 
Leland  v.  Stone  was  a  case  of  mistake  in  omitting  the  exception.  This  case 


COVENANT    AGAINST    INCUMBEANCES.  285 

to  cases  of  fraud15  or  mistake.16  But  the  fraud  or  mistake  com- 
plained of  must,  of  course,  be  such  as  caused  the  omission  of  the 
true  agreement  of  the  parties  from  the  conveyance,  such  as  a  fraud- 
ulent representation  that  the  insertion  of  the  exception  was  un- 
necessary, or  that  the  instrument,  in  fact,  contained  the  exception, 
or  other  fraud  of  a  like  kind.  It  could  hardly  be  contended  that 
either  party  was  guilty  of  fraud  in  taking  advantage  of  an  inad- 
vertent omission  of  a  part  of  their  agreement  from  the  instrument." 
§  121-a.  Conveyance  "  subject  to "  incumbrance.  It  fre- 
quently happens  in  the  sale  of  real  property  that  the  purchaser 
agrees  to  pay  off  and  discharge  known  incumbrances  upon  the 
premises  as  a  part  of  the  consideration  of  the  sale.  When  such  is 
the  case  the  seller  should  be  careful  to  see  that  such  an  agreement 
is  fully  and  unequivocally  expressed  in  the  conveyance.18  A  mere 
recital  that  the  grantor  conveys,  or  that  the  purchaser  takes, 
"  subject  to  mortgage  "  or  "  subject  to  incumbrances  "  imposes  no 
obligation  upon  the  grantee  to  pay  the  mortgage  debt  or  remove  the 

of  Sidders  v.  Riley  has  been  criticized  by  Mr.  Rawle  (Covts.  for  Title  [Sthed.l, 
p.  113).  Such,  however,  seems  to  be  the  established  rule  in  Indiana.  Maria 
v.  lies,  (Ind.)  30  N.  E.  Rep.  152;  Hendrick  v.  Wisehart,  57  Ind.  129;  McDill 
v.  Gunn,  43  Ind.  315;  Fitzer  v.  Fitzer,  29  Ind.  468.  And  whether  or  not 
consistent  with  the  doctrine  of  merger  of  parol  agreements  in  the  covenants 
for  title,  it,  doubtless,  in  many  cases,  effectuates  the  true  intent  of  the 
parties.  As  to  the  rule  in  Pennsylvania,  see  post,  §  269. 

"  Buckner  v.  Street,  5  McCrary  (U.  S.),  59.  Kyle  v.  Febley,  (Wis.)  51  N.  W. 
Rep.  257.  In  this  case  the  grantor,  an  ignorant  woman,  had  been  fraudulently 
induced  to  execute  a  deed,  without  excepting  an  outstanding  lease  from  her 
covenants.  Fraud  is  not  merged  in  a  covenant  against  incumbrances.  Sargent 
v.  Gutterson,  13  N.  H.  473.  See  post,  §  270.  Taylor  v.  Gilman,  25  Vt,  413. 
Here  the  incumbrance  complained  of  was  a  right  in  a  railroad  company  to 
lake  gravel  and  earth  from  the  granted  premises.  It  appeared  that  the  parties 
had  divided  between  themselves  the  damages  that  were  to  be  paid  by  the  com- 
pany, and  had  expressly  agreed  that  the  covenant  should  not  embrace  that 
incumbrance,  and  it  was  considered  that  to  enforce  the  covenant  would  be  to 
n«sist  the  grantee  in  a  fraud.  It  is  not  easy  to  draw  a  distinction  in  principle 
between  this  case  and  any  other  in  which,  for  a  valuable  consideration,  it  was 
nsrre^d  that  the  covenant  should  not  extend  to  a  particular  incurabrance,  and 
in  which  the  parties  failed  to  insert  the  exception  in  the  deed. 

"Haire  v.  Baker,  1  Seld.  (N.  Y.)  361.  The  fraud  or  mistake  may,  of  course, 
ln>  shown  in  equity,  and  in  equitable  defenses  at  law,  very  generally  permitted 
l»y  statute  throughout  the  American  States. 

"See  the  remarks  of  the  court  in  Collingwood  v.  Irwin,  3  Watts  (Pa.),  306. 

"Jones  Mortg.  §  748;  Rawle  Covts.  for  Title  (5th  ed.),  §  88. 


286  MARKETABLE    TITLE    TO    REAL    ESTATE. 

incumbrance,  except  for  his  own  protection.19  The  statement  that 
the  deed  is  made  "  subject  to  "  designated  incumbrances  is  often 
made  merely  for  the  purpose  of  preventing  a  breach  of  the  covenant 
against  incumbrances,  and  not  for  the  purpose  of  charging  the 
grantee  with  the  incumbrance.20  If,  however,  the  intention  of  the 
parties  that  the  grantee  should  discharge  incumbrances  in  part  pay- 
ment of  the  purchase  money  appears  from  the  whole  instrument, 
though  not  expressed  in  so  many  words,  it  will  be  enforced.21  Parol 
evidence  will  be  received  to  show  that  a  grantee  taking  "  subject 
to  "  an  incumbrance  was  by  his  contract  obliged  to  pay  off  and  dis- 
charge the  same  as  part  of  the  consideration.22  But,  while  a  con- 
veyance "  subject  to  "  a  particular  incumbrance  will  not  oblige  the 
grantee  to  pay  the  incumbrance,  except  for  his  own  protection,  it 
will,  of  course,  relieve  the  grantor  from  liability  as  to  that  incum- 
brance upon  his  covenant  against  incumbrances.23  That  expression 
is  sufficient  as  a  special  exception  from  the  operation  of  the  cove- 
nant.24 And  where  there  has  been  such  an  exception  the  covenant 

"Jones  Mortg.  §  748.  Drury  v.  Tremont  Imp.  Co.,  13  Allen  (Mass.),  171. 
Belmont  v.  Coman,  22  N.  Y.  438.  Strohauer  v.  Voltz,  42  Mich.  444.  Johnson 
v.  Monell,  13  Iowa,  300;  Aufricht  v.  Northrup,  20  Iowa,  61.  Livingston  Bank 
v.  Sailing,  66  Neb.  180;  92  N.  W.  318.  See,  also,  Tweddell  v.  Tweddell,  2  Bro. 
C.  154.  Waring  v.  Ward,  7  Ves.  Jr.  337.  Evidence  that  the  purchaser  was 
familiar  with  the  land,  and  that  he  knew  its  value  exceeded  the  purchase 
price,  is  not  admissible  for  the  purpose  of  showing  that  he  assumed  the  pay- 
ment of  a  mortgage  on  the  premises.  Morehouse  v.  Heath,  99  Ind.  509. 
It  seems,  however,  that  parol  evidence  will  be  admitted  to  show  that  the  in- 
cumbrance was  deducted  from  the  purchase  money.  See  Townsend  v.  Ward, 
27  Conn.  610.  Ferris  v.  Crawford,  2  Denio  (N.  Y.),  595.  Thompson  v. 
Thompson,  4  Ohio  St.  333.  McMahon  v.  Stewart,  23  Ind.  590. 

24  Van  Winkle  v.  Earl,  26  N.  J.  Eq.,  242.  Barnett  v.  Keehn,  67  Wis.  154 ; 
30  N.  W.  112. 

"  Thus  it  has  been  held  that  "  a  conveyance  of  land  expressly  subject  to  all 
incumbrances "  binds  the  grantee  to  pay  off  an  incumbrance.  Skinner  v. 
Starner,  24  Pa.  St.  123.  A  recital  in  a  deed  that  "  a  portion  of  the  above- 
described  premises  was  set  off  on  execution  by  A.  against  B.  and 
this  conveyance  is  made  subject  to  the  incumbrance  of  said  execution,"  ex- 
cepts  such  incumbrance  from  the  grantor's  covenants.  Shears  v.  Dusenbury, 
13  Gray.  (Mass.),  292. 

*  Aufricht  v.  Northrup,  20  Iowa,  61.    Gill  v.  Ferrin,  71  N.  H.  421;  52  Atl. 
558. 

*  Freeman  v.  Foster,  55  Me.  508.     Jackson  v.  Hoffman,  9  Cow.    (N.  Y.) 
271;   Walther  v.  Briggs,  69  Minn.  98;  71  N.  W.  909:  Hopper  v.  Smyser,  90 
Md.  363 ;  45  Atl.  206.      Van  Winkle  v.  Earl,  26  N.  J.  Eq.  242. 

"  Freeman  v.  Foster,   55  Me.  508. 


COVENANT    AGAINST    INCUMBKANCES.  287 

•will  not  of  course  be  broken  by  the  existence  of  the  excepted  in- 
cumbrance.25  Xor  will  the  grantee  be  permitted  to  assign  as  a 
breach  of  the  covenant  against  incumbrances  a  mortgage  which  he 
himself,  for  an  adequate  consideration,  had  undertaken  to  dis- 
charge.26 But  if  a  particular  incumbrance  of  a  named  amount  be 
excepted  from  the  operation  of  the  covenant,  the  mention  of  such 
amount  will  not  be  treated  as  mere  matter  of  description ;  it  will  be 
held  a  guaranty  that  the  sum  mentioned  constitutes  the  whole 
amount  of  the  incumbrance,  and  the  covenant  will  be  broken  if  the 
incumbrance  exceed  that  amount.27  It  has  also  been  held  that  an 
agreement  by  the  grantee  to  pay  off  incumbrances  might  be  waived 
by  the  parties,  and  that  the  grantee  might,  after  such  waiver,  main- 
tain an  action  for  breach  of  the  covenant,  if  the  vendor  failed  to 
satisfy  the  incumbrances,  or  to  redeem  the  land  if  sold  there- 
under.28 An  agreement  by  the  grantee  to  assume  payment  of  an  in- 
cumbrance on  the  premises  need  not  be  contained  in  the  conveyance 
to  him.  Such  an  agreement  contained  in  an  instrument  of  equal 
dignity  with  the  deed,  such  as  a  bond,  will  render  inoperative  a 
covenant  of  warranty  contained  in  the  deed.29  In  Massachusetts 
it  is  settled  that  if  a  conveyance  contain  a  covenant  against  in- 
cumbrances, excepting  a  particular  incumbrance  and  also  a  cove- 
nant of  warranty,  the  exception  applies  only  to  the  covenant  against 
incumbrance  and  not  to  the  covenant  of  warranty,  and  that  the  ex- 
cepted incumbrance,  if  enforced,  will  Constitute  a  breach  of  the 
covenant  of  warranty.30  This  rule,  however,  has  been  thus  qualified 
in  that  State,  namely,  that  if  the  granting  part  of  the  deed  describe 

"Foster  v.   Woods,  16  Mass.  116. 

» Watts  v.  Wellman,  2  N.  H.  458.     Reid  v.  Sycks,  27  Ohio  St.  285. 

"  Smith  v.  Lloyd,  29  Mich.  382.    Potter  v.  Taylor,  6  Vt.  676. 

"Sherwood  v.  Wilkins,    (Minn.)    52  N.   W.  Rep.  394. 

"  Brown  v.  Staples,  28  Me.  497 ;  48  Am.  Dec.  504.  So,  generally,  it  seems,  if 
the  grantee  assume  in  writing,  the  discharge  of  the  incumbrance.  Copeland 
v.  Copeland,  30  Me.  446.  McAbee  v.  Cribbs,  194  Pa.  St.  94;  44  Atl.  1066.  In 
Reid  v.  Sycks,  27  Ohio  St.  285,  it  was  held  that  an  agreement  by  the  pur- 
chaser contained  in  the  contract  of  sale  to  pay  an  incumbrance,  is  not  merged 
in  a  conveyance  of  the  land  with  covenants  for  title. 

"Estabrook  v.  Smith,  6  Gray  (Mass.),  572.  Tt  is  to  be  observed  that  in  this 
case  there  was  no  mention  of  the  incumbrance  in  the  granting  part  of  the  deed. 
This  decision  has  been  questioned  as  adopting  a  construction  of  the  covenants 
apparently  at  variance  with  the  intention  of  the  parties.  The  case  has  been 


288  MARKETABLE  -TITLE    TO    REAL    ESTATE. 

the  premises  as  subject  to  an  incumbrance,  a  covenant  of  war- 
ranty following  thereafter  will  be  limited  precisely  to  what  pur- 
ported to  be  conveyed  —  that  is  the  land,  subject  to  the  iucum- 
brance.31  And  further,  that  the  exception  of  a  particular  incurn- 
brance  will  not  be  controlled  by  a  subsequent  covenant  of  warranty, 
if  the  deed  recites  that  the  grantee  assumes  and  agrees  to  pay  the 
excepted  incumbrance.32 

In  a  covenant  against  incumbrances,  a  provision  that  the  land 
is  clear  "  except  an  incumbrance  of  $1,500,"  merely  identifies  the 
incumbrance  and  does  not  fix  the  amount  by  payment  of  which 
the  incumbrance  mav  be  discharged.  Hence  the  grantor  is  not 

«/  CJ  O 

liable  on  his  covenant  for  the  interest  accrued  on  the  mortgage  at 
the  time  of  the  conveyance.33  On  the  other'  hand,  it  has  been  held 
that  an  exception  of  an  incumbrance,  payment  of  which  was  as- 
sumed by  the  grantee,  did  not  embrace  interest  coupons  matured 
and  in  default  at  the  date  of  the  deed,  with  accrued  interest 
thereon,  and  that  the  grantor  remained  liable  for  such  coupons  and 
interest.34 

A  deed  of  trust  to  secure  payment  of  the  purchase  money  in 
which  the  grantor  covenants  to  pay  all  tax  liens  on  the  property, 
operates  to  restrict  or  qualify  a  covenant  against  incumbrances  in 
the  deed  by  the  party  secured  by  the  trust.35 

criticized  by  Mr.  Rawle  (Covt*.  for  Title  [5th  ed.],  §  290),  and  disapproved 
in  Bricker  v.  Bricker,  11  Ohio  St.  240,  where  a  contrary  decision  was  rendered 
upon  the  same  state  of  facts.  It  was  approved,  however,  in  King  v.  Kilbride, 
58  Conn.  109:  19  Atl.  Eep.  519.  Sandwich  Manfg.  Co.  v.  Zellman,  (Minn.) 
51  N.  W.  Kep.  379. 

"Brown  v.  Bank,  148  Mass.  300;  10  X.  E.  Rep.  382;  Linton  v.  Allen,  154 
Mass.  432;  28  N.  E.  Rep.  780.  Freeman  v.  Foster,  55  Me.  508.  But  where 
incumbrances  were  described  in  the  granting  part  of  the  deed,  and  all,,  of 
them  were  excepted  from  the  covenant  against  incumbrances,  and  the  grantor 
further  covenanted  that  he  would  "  warrant  the  premises  against-  all  claims 
and  demands  of  all  persons  except"  (two  of  the  incumbrances  mentioned), 
it  was  held  that  he  had  covenanted  against  the  third  incumbrance,  such  being 
the  consequence  of  his  failure  to  except  that  incumbrance  from  his  covenant 
of  warranty.  Aver  v.  Brick  Co..  (Mass.)  31  N.  E.  Rep.  717. 

"Lively  v.  Rice,  150  Mass.  171:  22  N.  E.  Rep.  888.  Keller  v.  Ashford,  133 
IT.  S.  610. 

**  Bankson  v.  Lagerlof  (Iowa).  75  N.  W.  661 ;  Laderoute  v.  Chale,  9  N.  Dak. 
331 ;  83  N.  W.  218. 

"Reagle  v.  Dennis,   (Kan.  App.)   55  Pac.  469. 

»  Cleveland  Park  L.  &  I  Co.  v.  Campbell,  65  Mo.  App.  109. 


COVENANT    AGAINST    INCUMBEANCES.  289 

§  122.  WHAT  CONSTITUTES  BREACH.  A  covenant  against  in- 
cumbrances,  if  broken  at  all,  is  broken  as  soon  as  made.  The  mere 
existence  of  the  incumbrance,  if  it  be  capable  of  enforcement,  is  a 
breach  of  the  covenant  without  regard  to  the  probability  of  its  en- 
forcement, though,  as  we  shall  hereafter  see,  the  plaintiff  can  re- 
cover no  more  than  nominal  damages  if  he  has  suffered  no  incon- 
venience or  loss  on  account  of  the  incumbrance.36  The  Statute  of 
Limitations  runs  upon  a  covenant  against  incumbrances  from  the 
time  the  deed  was  made.37  But  a  covenant  to  defend  the  grantee 
against  a  particular  incumbrance  is  not  broken  by  the  mere  exist- 
ence of  that  incumbrance;  such  a  covenant  is  broken  only  by  an 
enforcement  of  the  incumbrance.  Any  other  construction  would 
be  plainly  contrary  to  the  manifest  intention  of  the  parties,  even 
though  the  deed  contained  a  general  covenant  against  incum- 
brances.38 The  covenant  is,  of  course,  not  broken  by  the  existence 
of  an  incumbrance  which  the  grantee  has  assumed  to  pay.  And 
proceedings  to  foreclose  such  an  incumbrance,  accompanied  by  a  Us 
pendens,  cannot  be  held  a  breach  of  the  covenant  since  these  are 
mere  incidents  of  the  incumbrance.39 

Nor  is  the  covenant  broken  by  the  existence  of  an  incumbrance 
when  the  deed  contains  a  provision  that  it  is  made  "  subject  to  " 
such  incumbrance.  That  recital  is  a  part  of  the  description  of  the 
estate,  and  the  covenant  has  reference  to  that  estate  thus  qualified.40 

It  has  been  held  that  an  express  covenant  to  remove  a  particular 
incumbrance  imposes  a  higher  obligation  than  the  ordinary  cove- 
nant against  incumbrances,  and  that  on  the  breach  of  such  cove- 
nant, the  covenantee  may  recover  his  actual  damages,  though  he 
has  not  himself  discharged  the  incumbrance  nor  suffered  eviction 
thereunder.41 

*•  See  post,  §  129.  Stamburgh  v.  Smith,  23  Ohio  St.  584.  Ladd  v.  Myers,  137 
Mass.  151.  Moseley  v.  Hunter,  15  Mo.  322.  Dahl  v.  Stakke,  12  N.  Dak.  325; 
96  N.  W.  353;  Jewett  v.  Fisher,  (Kan.  App.)  58  Pac.  1023. 

"  Guerin  v.  Smith,  62  Mich.  369 ;  38  N.  W.  Rep.  906. 

M  Shelton  v.  Pease,  10  Mo.  473. 

MMonell  v.  Douglas,  17  N.  Y.  Supp.  178,  not  officially  reported. 
•  40  Johnson  v.  Nichols,  105  Iowa  122;   74  N.  W.  750;   Brown  v.  Bank,  148 
Mass.  30;   19  N.  E.  382. 

41  Bohlcke  v.  Buchanan,  94  Mo.  App.  320 ;  aff'd.  68  S.  W.  Rep.  92. 

19 


290  MARKETABLE    TITLE    TO    REAL    ESTATE. 

§  123.  Definition  of  incumbrance.  The  precise  legal  defini- 
tion of  the  term  incumbrance  is  a  matter  of  some  nicety.  In  a 
popular  sense,  it  means,  as  has  been  said,  a  clog,  load,  hindrance, 
impediment,  weight.  Perhaps  the  best  judicial  definition  of  the 
term  is  that  of  Chief  Justice  PARSONS  :  "  Every  right  to  or  interest 
in  the  land  granted,  to  the  diminution  of  the  value  of  the  land,  but 
consistent  with  the  passing  of  the  fee."42  Hereunder  all  incum- 
brances  may  be  classed  as:  (1)  Pecuniary  charges  on  the  granted 
premises;  (2)  Estates  or  interests  less  than  a  fee  in  the  premises; 
and  (3)  Easements  or  servitudes  to  which  the  premises  are  subject. 
The  definition  given  is  satisfactory  as  to  the  first  two  of  these 
classes ;  for  it  it  plain  that  a  pecuniary  charge  upon  the  premises, 
or  a  lesser  estate  carved  therefrom,  must  diminish  their  value.  But 
the  definition  is  necessarily  inconclusive  as  respects  the  third  class, 
inasmuch  as  there  are  certain  easements,  technically  "  incum- 
brances  "  which  may  be  beneficial  rather  than  detrimental  to  the 
premises,  such,  for  example,  as  a  railway  or  a  public  highway;  a 
fact  which,  coupled  with  notice  of  the  existence  of  the  easements 
at  the  time  of  the  purchase,  has  occasioned  much  conflict  of  decision 
as  to  whether  they  constitute  such  breaches  of  the  covenant  as  en- 
title the  purchaser  to  damage.43 

§  124.  Pecuniary  charge  or  lien.  Judgments.  Tax  liens. 
Notice  to  covenantee.  A  pecuniary  charge  or  lien  upon  the 
granted  premises,  existing  at  the  time  of  the  conveyance,  constitutes 
a  breach  of  the  covenant  against  incumbrances.  It  is  immaterial 
whether  the  purchaser  had  or  had  not  notice  of  the  incumbrance 
at  the  time  the  conveyance  was  executed.  The  right  to  rescind  an 

0  Prescott  v.  Trueman,  4  Mass.  627  ;  3  Am.  Dec.  249.  This  definition  has  been 
approved  by  Mr.  Greenleaf  (2  Ev.  §  242),  and  by  Mr.  Rawle  (Covts.  for  Tittle 
[5th  ed.]  §  76),  who  however  pertinently  adds  that  the  question  "what  does 
diminish  the  value  of  the  land "  must  sometimes  be  a  matter  of  doubt,  as 
where  the  alleged  incumbrance  consists  of  a  railroad  or  a  public  highway, 
either  of  which  may  be  a  benefit  instead  of  a  burden  to  the  land.  Definition 
approved  in  Herrick  v.  Moore,  19  Me.  313.  Bronson  v.  Coffin,  108  Mass.  175; 
11  Am.  Rep.  335.  Chapman  v.  Kimball,  7  Neb.  399;  Fritz  v.  Pusey,  31  Minn. 
368 ;  18  N.  W.  Rep.  94.  Clark  v  Fisher,  54  Kans.  403 ;  38  Pac.  Rep.  493,  arid 
in  many  other  cases. 

"Post,  §   127. 


COVENANT    AGAINST    INCUMBRANCES.  291 

executory  contract  and  to  recover  back  the  purchase  money  already 
paid,  or  to  detain  that  which  remains  unpaid,  has  been  in  some 
cases  denied  on  the  ground  that  the  contract  was  made  with  notice 
of  the  incumbrance.  But  notice  is  of  no  importance  after  a  con- 
veyance with  covenants  for  title  has  been  executed.  The  purchaser 
takes  the  covenant  as  much  for  protection  against  known  as 
against  unknown  incumbrances,44  and  he  is  not  required  to  exercise 
any  diligence  in  ascertaining  whether  there  are  incumbrances  on 
the  land.45  The  existence  of  the  incumbrance  constitutes  a  breach 
of  the  covenant  though  the  incumbrance  has  been  neither  actually 
nor  constructively  enforced,  and  though  the  covenant  be  coupled 
with  that  for  quiet  enjoyment,  and  there  has  been  no  eviction  of 
the  purchaser.46  But,  as  will  be  hereafter  seen,  the  purchaser  can 
recover  no  more  than  nominal  damages  if  the  breach  has  occasioned 
him  no  loss  or  injury.47 

A  judgment  lien  binding  the  granted  premises  constitutes,  of 
course,  a  breach  of  the  covenant  against  incumbrances.48  So,  also, 
an  attachment,  though  it  be  in  its  nature  uncertain  and  dependent 
upon  the  final  judgment  to  be  rendered  in  the  action;49  the  lien 
which  it  creates  remains  a  continuing  security  for  any  judgment 
that  the  plaintiff  may  obtain  in  the  suit.50  The  covenant  is  also 

**  Dunn  v.  White,  1  Ala.  645.  Worthington  v.  Curd,  22  Ark.  285.  Snyder  v. 
Lane,  10  Ind.  424.  Whitten  v.  Krick,  27  Ind.  App.  419;  61  N.  E.  593.  Town- 
send  v.  Weld,  8  Mass.  146.  Smith  v.  Lloyd,  29  Mich.  382.  Clore  v.  Graham, 
64  Mo.  249.  Long  v.  Moler,  5  Ohio  St.  272;  Lloyd  v.  Quimby,  5  Ohio  St.  263, 
265.  Funk  v.  Voneida,  11  Serg.  &  E.  (Pa.)  109;  14  Am.  Dec.  617.  Cathcart 
v.  Bowman,  5  Pa.  St.  317;  Shaffer  v.  Green,  88  Pa.  St.  370.  Evans  v.  Taylor, 
177  Pa.  St.  286;  35  Atl.  635.  Lane  v.  Richardson,  (N.  Car.)  10  S.  E.  Rep. 
189.  Yancey  v.  Tatlock,  (Iowa)  61  N.  W.  Rep.  997. 

"Edwards  v.  Clark,  83  Mich.  246;  47  N.  W.  Rep.  112;  Smith  v.  Lloyd,  29 
Mich  382. 

"Hall  v.  Dean,  13  Johns.  (N.  Y.)    105. 

"Post,  §  129. 

aHall  v.  Dean,  13  Johns.  (N.  Y. )  105.  A  sale  of  the  premises  under  an  execu- 
tion issued  upon  a  dormant  judgment  without  proceedings  to  revive,  and  with- 
out leave  of  court,  is,  nevertheless,  a  breach  of  the  covenant  against  incum- 
brances. A  sale  of  property  under  a  merely  voidable  execution  is  valid.  Jones 
V.  Davis,  24  Wis.  229. 

« Norton  v.  Babcock,  2  Met.  (Mass.)  510;  Kelsey  v.  Remer,  43  Conn.  129; 
21  Am.  Rep.  638. 

80  Johnson  v.  Collins,   116  Mass.   392. 


292  MARKETABLE    TITLE    TO    REAL    ESTATE. 

broken  by  the  existence  of  a  mechanic's  lien,51  a  vendor's  Hen,"  or  a 
mortgage  or  deed  of  trust  upon  the  premises.63  A  mere  Us  pendens, 
without  evidence  that  it  is  well  founded,  is  no  incumbrance  ;M 
neither  is  a  tax  deed  which,  though  recorded,  is  for  any  reason  in- 
sufficient to  pass  the  title.55 

Taxes  and  assessments  payable  by  the  grantor  and  levied  upon 
the  property  conveyed,  are  a  breach  of  the  covenant  against  incum- 
brances,  especially  under  statutes  which  provide  that  they  shall 
constitute  liens  on  the  property  taxed  or  benefited.56  Where,  how- 
ever, the  conveyance  made  was  after  the  tax  had  been  ordered  to  be 
levied,  or  the  improvement  directed  to  be  made,  but  before  the  tax 
or  assessment  had  been  placed  in  the  hands  of  the  revenue  officers 
for  collection,  questions  have  been  raised  as  to  whether  the  grantor 
or  the  grantee  was  properly  chargeable  therewith.  Independent  of 
statutory  construction,  the  general  rule,  supported  by  the  weight  of 
authority,  seems  to  be  that  in  such  a  case  the  tax  relates  back  and 
becomes  a  lien  as  of  the  time  when  the  assessment  roll  was  made  up, 
or  the  improvement  ordered  to  be  made,  and  that  in  such  a  case  the 
existence  of  the  inchoate  tax  or  assessment  operates  a  breach  of  the 

"Dyer  v.  Ladomus,  2  Del.  Co.  Ct.  Rep.  (Pa.)  422.  Redmon  v.  Phenix  Fire 
Ins.  Co.,  51  Wis.  292;  8  N.  W.  Rep.  226.  This  was  a  suit  on  a  fire  insurance 
policy,  containing  a  statement  that  there  was  no  incumbrance  on  the  premises. 
The  right  to  file  a  mechanics'  lien  at  the  time  of  the  deed,  is  also  a  breach 
of  the  covenant.  Duffy  v.  Sharp,  73  Mo.  App.  316. 

"McKennan  v.  Doughman,  1  Pen.  &  W.   (Pa.)  417,  semble. 

58  Tufts  v.  Adams,  8  Pick.  (Mass.)  549;  Brooks  v.  Moody,  20  Pick.  (Mass.) 
474.  Bean  v.  Mayo,  5  Greenl.  (Me.)  94.  Boyd  v.  Bartlett,  36  Vt.  1.  Funk 
v.  Voneida,  11  Serg.  &  R.  (Pa.)  109;  14  Am.  Dec.  617. 

"Kley  v.  Geiger,   (Wash.)  30  Pac.  Rep.  727.     See,  also,  post,  §§  290,  306. 

*Tibbetts  v.  Leeson,  148  Mass.  102;   18  N.  E.  Rep.  679. 

**  Carr  v.  Dooley,  119  Mass.  294.  In  fact,  the  assessment  is  no  lien  unless 
made  so  by  statute.  Cooley  on  Taxation,  305.  Cadmus  v.  Fagan,  47  N.  J.L.  549. 
Taxes  constitute  breach  of  covenant  against  incumbrances.  Fuller  v.  Jillette, 
9  Biss.  (C.  C.)  296.  Long  v.  Moler,  5  Ohio  St.  271;  Craig  v.  Heis,  30  Ohio 
St.  550.  Cochran  v.  Guild,  106  Mass.  30;  8  Am.  Rep.  296;  Hill  v.  Bacon,  110 
Mass.  388;  Blackie  v.  Hudson,  117  Mass.  181.  Mitchell  v.  Pillsbury,  5  Wis. 
407.  Richard  v.  Bent,  59  111.  38 ;  14  Am.  Rep.  1 ;  Almy  v  Hunt,  48  111.  45. 
Shaffer  v.  Green,  87  Pa.  St.  370.  Blossom  v.  Van  Court,  34  Mo.  394 ;  97  Am. 
Dec.  412.  Taxes  or  assessments  upon  the  granted  premises  payable  by  the 
grantor  are  breaches  as  well  of  a  covenant  against  incumbrances  created  by 
himself,  as  of  a  general  covenant  against  incumbrances.  Devine  v.  Rawle, 
(Pa.  St.)  23  Atl.  Rep.  1119.  Milot  v.  Reed,  (Mont.)  29  Pac.  343.  A  better- 


COVENANT    AGAINST    INCUMBEANCES.  293 

grantor's  covenant  against  incumbrances.57  But  where  a  statute 
provides  that  all  taxes  and  assessments  shall  become  liens  upon  a 
certain  day  of  the  year,  a  tax  or  assessment  levied  or  ordered  be- 
fore that  day,  will  not  constitute  a  breach  of  the  covenant,  in  a 
deed  executed  in  the  interval  between  the  date  of  the  levy  and  the 

ment  tax  lawfully  assessed,  is  a  breach  of  the  covenant  against  incumbrances. 
Foley  v.  City  of  Haverhill,  144  Mass.  352;  11  N.  E.  Rep.  554;  Simanovich  v. 
Wood,  145  Mass.  180;  13  N.  E.  Rep.  391.  Smith  v.  Abington  Sav.  Bank,  171 
Mass.  178;  50  N.  E.  545.  ,  An  unpaid  municipal  claim  for  water  pipe,  not 
entered  of  record  so  as  to  preserve  its  lien,  is  no  breach  of  the  covenant. 
Stutt  v.  Building  Association,  12  Pa.  Co.  Ct.  Rep.  344.  In  Ingalls  v.  Cooke, 
21  Iowa,  560,  it  was  held  that  a  mortgagor  is  not  Hale  for  taxes  assessed  upon 
the  property,  after  the  mortgage  was  executed,  COLE,  J.,  dissenting.  This 
decision  is  at  least,  questionale.  A  mortgage  is  a  mere  security  for  the 
payment  of  money,  and  does  not  operate  a  change  of  title  or  ownership, 
(1  Jones  Mortg.  §  11;  Rawle  Covts.  for  Title  [5th  ed.],  §  218;  Stanard  v. 
Eldridge,  16  Johns.  [N.  Y.]  254),  and  the  duty  to  pay  the  taxes  would,  there- 
fore, seem  to  devolve  upon  the  mortgagor,  otherwise  he  might  suffer  the 
premises  to  be  sold  for  taxes,  purchase  them  himself,  and  acquire  the  estate 
discharged  of  the  mortgage,  which  would  contravene  the  rule  that  the  owner 
of  lands  subject  to  lien  cannot  permit  them  to  be  sold  for  taxes,  and  then 
obtain  a  tax  deed  for  the  purpose  of  cutting  off  such  lien.  See  Jones  v.  Davis, 
24  Wis.  229;  Smith  v.  Lewis,  20  Wis.  350;  Bassett  v.  Welch,  22  Wis.  175. 
The  liability  of  a  pew  in  a  church  recently  built,  to  be  assessed  for  further 
building  expenses  incurred  after  the  pew  had  been  conveyed  with  covenants 
against  incumbrances,  is  not  an  incumbrance  for  which  the  grantor  is  re- 
sponsible, and  such  an  assessment  is,  therefore,  no  breach  of  the  covenant 
against  incumbrances.  Spring  v.  Tongue,  9  Mass.  28;  6  Am.  Dec.  21. 

Tax  liens  are  covered  by  the  statutory  covenant  against  incumbrances 
implied  from  the  words  "grant"  or  "convey."  Bullitt  v.  Coryell,  (Tex. 
Civ.  App.)  84  S.  W.  482.  Special  assessments  for  street  improvements  are 
not  "  taxes,"  within  the  meaning  of  an  exception  from  the  operation  of  a 
covenant  against  incumbrances.  Cleveland  Park  L.  &  I.  Co.  v.  Campbell.  65 
Mo.  App.  109.  A  covenant  of  "seisin"  in  a  deed  is  not  broken  by  the  exist- 
ence of  a  tax  deed  to  the  property,  executed  two  months  after  the  execution 
of  the  covenant,  though  the  tax  certificate  existed,  when  the  covenant  was 
executed.  Lerfing  v.  Seelig,  14  S.  Dak.  303;  85  N.  W.  585.  An  assessment 
lien  which,  if  valid,  would  have  constituted  a  breach  of  the  covenant  against 
incumbrances,  was  declared  unconstitutional,  whereupon  another  assessment 
for  the  same  improvement,  but  under  another  statute,  was  made.  Held,  that 
the  lien  of  the  second  assessment  did  not  constitute  a  breach  of  the  covenant 
against  incumbrances.  Barth  v.  Ward,  71  N.  Y.  Supp.  340;  63  App.  Div.  193. 

"Cochran  v.  Guild,  106  Mass.  30;  8  Am.  Rep.  296.  De  Peyster  v.  Murphy, 
66  N.  Y.  622.  Sanders  v.  Brown,  65  Ark.  498;  47  S.  W.  461.  The  liability  of 
the  premises  to  an  assessment  for  the  expense  of  building  a  sewer,  is  an  in- 
cumbrance from  the  time  of  the  order  for  the  construction  of  the  sewer,  and 
is,  therefore,  a  breach  of  a  covenant  against  incumbrances  in  a  deed  delivered 


MARKETABLE    TITLE    TO    REAL    ESTATE. 

date  on  which  the  tax  hecame  a  lien.58  In  such  a  case,  where,  by 
the  terms  of  the  contract  made  three  months  before  December 
31st,  the  day  when  taxes  became  a  lien,  a  deed  was  not  to  be  made 
until  after  that  date,  the  vendor  meantime  remaining  in  possession, 
it  was  held  that  the  covenant  against  incumbrances  in  the  deed  so 

before  the  assessment  was  laid,  but  after  the  order  was  passed.  Carr  v. 
Dooley,  119  Mass.  294.  In  Lafferty  v.  Milligan,  165  Pa.  St.  534;  30  Atl. 
Rep.  1030,  certain  street  improvements  were  made  under  an  act  afterwards 
held  unconstitutional.  A  curative  act  was  passed  validating  the  improve- 
ments, and  it  was  held  that  assessments  therefor  constituted  a  breach  of  a 
covenant  against  incumbrances  in  a  deed  executed  after  the  passage  of  the 
curative  act,  though  at  the  time  of  the  execution  of  the  deed  the  exact  amount 
to  be  assessed  upon  the  property  had  not  been  fixed.  In  Eaton  v.  Chesebrough, 
82  Mich.  214;  46  N.  W.  Rep.  365,  it  was  held  that  under  a  city  charter 
making  taxes  a  lien  upon  real  estate,  without  fixing  a  time  when  such  lien 
shall  attach,  such  taxes  become  a  lien  from  the  time  the  assessment  roll 
passed  into  the  hands  of  the  tax  collector,  that  is,  on  the  first  day  of  July; 
so  that  taxes  for  the  year  1889  assessed  upon  a  city  lot,  constituted  a  breach 
of  a  covenant  against  incumbrances  in  a  conveyance  of  such  lot  executed  and 
delivered  in  the  afternoon  of  the  1st  day  of  July,  1890,  in  pursuance  of  a 
contract  of  sale  made  on  the  22d  day  of  May,  1890.  The  defendant  (vendor) 
contended,  among  other  things,  that  the  covenant  against  incumbrances  related 
back  to  the  date  of  the  contract  (May  twenty-second),  and  that  there  being 
no  consummated  tax  lien  at  that  time,  the  covenant  was  not  broken,  but  this 
contention  was  denied  by  the  court.  Under  a  statute  providing  that  a  ditch 
assessment  should  be  a  lien  on  the  property  benefited,  it  was  held  that  the 
lien  attached  when  the  assessment  was  made,  and  constituted  a  breach  of 
covenant  against  incumbrances  in  a  conveyance  of  the  premises,  though  the 
tax,  because  not  spread  upon  the  assessment  roll,  could  not  have  been  paid 
until  after  the  conveyance.  Lindsay  v.  Eastwood,  72  Mich.  336;  40  N.  W. 
Rep.  455.  In  Wisconsin  it  is  provided  by  statute  that  where  land  is  conveyed 
after  the  assessment  but  before  warrant  for  collection  of  the  tax  is  issued, 
the  grantee  shall  be  liable  for  such  tax.  This  statute  has  been  held  appli- 
cable only  to  the  tax  of  the  year  in  which  the  conveyance  was  made.  Peters 
v.  Meyers,  22  Wis.  602.  In  Missouri  it  is  held  that  the  mere  order  for  a  tax 
or  assessment,  though  the  amount  which  the  owner  is  to  pay  be  not  ascertained, 
is  an  incumbrance  which  will  entitle  the  grantee  to  damages  if  he  has  had 
the  use  and  enjoyment  of  the  premises.  Barnhart  v.  Hughes,  46  Mo.  App. 
318.  Under  a  statute  providing  that  an  assessment  for  a  street  improvement 
shall  be  a  lien  from  the  time  of  the  completion  of  the  improvement,  a  cove- 
nant against  incumbrances  in  a  deed  executed  after  the  completion  of  the 
improvement  but  before  levy  of  the  assessment,  is  broken.  Hartshorn  v. 
Cleveland,  (N.  J.)  19  Atl.  Rep.  974. 

58  Bradley  v.  Dike,  (N.  J.  Eq.)  32  Atl.  Rep.  132.  Thus,  in  Tull  v.  Royston, 
30  Kans.  617,  a  statute  provided  that  taxes  and  assessments  should  be  liens 
from  the  first  day  of  November  in  the  year  in  which  they  were  levied.  Here- 
under  it  was  held  that  an  assessment  for  a  street  improvement  became  a  lien, 


COVENANT    AGAINST    INCUMBBANCES.  295 

executed,  was  broken  by  the  lien  for  taxes  which  attached  on 
December  31st.  The  vendor  in  such  case  was  regarded  as  practi- 
cally the  owner  until  the  deed  was  delivered  and  possession  given.69 
In  the  case  of  a  statute  which  provided  that  taxes  should  become  a 
lien  on  the  land  on  the  first  Monday  of  March  in  each  year,  it  was 
held  that  a  covenant  against  incumbrances  contained  in  a  deed 
executed  on  March  25,  1897,  embraced  taxes  assessed  to  the 
grantor  for  the  fiscal  year  beginning  July  1,  1897.60  In  New 
York  the  rule  is  that  until  the  amount  of  a  tax  is  acertained  and 
determined  in  the  manner  provided  by  law  no  lien  attaches. 
Therefore,  where  an  assessment  had  been  made  prior  to  the  execu- 
tion of  a  deed,  but  the  amount  of  the  tax  was  not  calculated  and 
fixed  by  the  authorities  until  after  the  deed  was  executed,  it  was 
held  that  there  was  no  breach  of  the  covenant  against  incum- 
brances.61 If  the  vendors  pay  an  assessment  made  before  the  sale 

not  from  the  time  the  improvement  was  authorized,  but  from  the  time  the 
assessment  became  due  and  payable,  and  that  a  covenant  against  incum- 
brances executed  in  the  interim  was  not  broken  by  such  assessment.  See, 
also,  Overstreet  v.  Dobson,  28  Ind.  256.  Long  v.  Moler,  5  Ohio  Sa.  272.  War- 
field  v.  Erdman,  19  Ky.  Law  R.  1550;  43  S.  W.  Rep.  708;  Everett  v.  Marston, 
186  Mo.  587;  85  S.  W.  Rep.  540.  In  Everett  v.  Dilley,  (Kans.)  7  Pac.  Rep. 
€61,  it  was  said  that  in  the  absence  of  special  agreement  the  law  determines 
which  party  shall  pay  taxes  accruing  while  the  purchase  money  remains  un- 
paid, which  is  as  much  as  to  say  that  the  tax  follows  the  land,  and  that  the 
person  who  is  in  equity  the  owner  at  the  time  o»f  the  imposition  of  the  tax 
must  pay  it.  In  Nebraska  a  vendor  selling  after  April  first  in  any  year  is, 
by  statute,  liable  for  the  taxes  of  that  year.  McClure  v.  Campbell,  (Neb.) 
40  N.  W.  Rep.  595. 

"Nungesser  v.  Hart,  122  Iowa,  647;  98  N.  W.  Rep.  505. 

"McPike  v.  Heaton,  131  Cal.  109;  63  Pac.  Rep.  179. 

n  Lathers  v.  Keogh,  109  N.  Y.  583,  distinguishing  De  Peyster  v.  Murphy,  66 
N.  Y.  622,  and  Barlow  v.  St.  Nicholas  Bank,  63  N.  Y.  399;  20  Am.  Rep.  547; 
McLaughlin  v.  Miller,  124  N.  Y.  510;  26  N.  E.  Rep.  1104;  People  v.  Gilon,  24 
Abb.  N.  C.  (N.  Y.)  125;  9  N.  Y.  Supp.  212,  563;  S.  C.,  56  Hun  (N.  Y.),  641. 
An  elaborate  note  on  the  successive  steps  in  the  incidence  of  taxation,  and 
the  time  at  which  taxes  became  a  lien  on  real  estate,  will  be  found  in  24  Abb. 
N.  C.  (N.  Y.)  136.  Where  a  statute  provides  that  estimates  for  a  proposed 
street  improvement  shall  be  made  from  time  to  time,  and  the  same  shall  con- 
stitute a  lien  on  the  adjoining  premises,  estimates  made  after  execution  of  a 
conveyance  constitute  no  breach  of  a  covenant  against  incumbrances  therein, 
though  the  contract  for  the  improvement  had  been  let  before  the  deed  was 
executed.  Langsdale  v.  Nicklaus,  38  Ind.  289.  The  mere  entry  of  land  in  an 


296  MABKETABLE    TITLE    TO    REAL.    ESTATE. 

of  the  property,  and  such  assessment  is  afterwards  set  aside  as 
illegal  and  a  new  assessment  is  thereupon  made,  such  reassessment 
is  a  breach  of  the  covenant  against  incumbrances  in  a  deed  exe- 
cuted after  the  original  assessment  and  before  the  reassessment. 
In  such  case  a  provision  of  the  city  charter  that  an  assessment 
becomes  a  lien  from  the  time  the  assessment  roll  is  placed  in  the 
hands  of  the  collector  of  taxes,  fixed  the  time  when  payment  was 
due,  but  not  the  time  when  the  assessment  became  an  incumbrance 
as  between  grantor  and  grantee.62  Taxes  assessed  after  the  execu- 
tion of  a  deed,  which  do  not  relate  back  to  a  time  prior  to  the 
execution  of  the  deed,  .are,  of  course,  no  breach  of  the  covenant.63 
Taxes  are  none  the  less  incumbrances  in  that  they  constitute  a 
personal  liability  of  the  grantor,  and  may  be  collected  otherwise 

assessment  roll  does  not  constitute  an  incumbrance  thereon,  and  the  subse- 
quent assessment  or  levy  of  a  tax  thereon  is  not  a  breach  of  a  covenant  against 
incumbrances  in  a  deed  executed  after  completion  of  the  assessment  roll,  but 
before  levy  of  the  tax.  Barlow  v.  St.  Nicholas  Nat.  Bank,  63  N.  Y.  399;  20 
Am.  Rep.  547,  distinguishing  Rundell  v.  Lakey,  40  N.  Y.  513.  The  liability 
to  assessment  for  a  local  improvement  is  no  lien  until  the  amount  thereof  has 
been  fixed  and  determined.  Therefore,  where,  before  the  execution  of  a  deed 
with  covenant  against  incumbrances,  the  work  of  paving  a  street  on  which 
the  granted  premises  abutted  had  been  completed,  but  no  proportion  of  the 
cost  was  assessed  against  such  premises  until  after  the  deed  was  executed,  it 
was  held  that  there  was  no  breach  of  a  covenant  against  incumbrances  in  such 
deed.  Harper  v.  Dowdney,  113  N.  Y.  644;  21  N.  E.  Rep.  63.  Hastings  v. 
Land  Imp.  Co.,  61  N.  Y.  Supp.  998;  46  App.  Div.  609.  Where  an  assessment 
for  benefits  has  not,  at  the  time  of  a  conveyance,  been  entered  and  confirmed 
as  required  by  statute  to  make  it  a  lien  on  the  benefited  premises,  it  will  not 
operate  a  breach  of  a  covenant  against  incumbrances  in  such  conveyance. 
Dowdney  v.  Mayer,  54  N.  Y.  186.  Real  Est.  Corp.  v.  Harper,  174  N.  Y.  123; 
66  N.  E.  Rep.  660.  Under  the  New  York  rule  the  burden  devolves  upon  the 
purchaser  to  show  that  the  amount  of  the  tax  or  assessment  had  been  legally 
ascertained  and  determined  at  the  time  the  covenant  was  made.  McLaughlin 
v.  Miller,  124  N.  Y.  510;  26  N.  E.  Rep.  1104.  The  right  of  a  city  to  demand 
payment  for  the  cost  of  laying  water  pipes  in  a  rural  district  from  users 
after  the  district  becomes  urban,  is  not  a  "  tax-lien,  claim,  or  incumbrance  " 
Avithin  the  meaning  of  a  contract  of  sale.  Gilham  v.  Real  Est.,  etc.,  Co.,  203 
Pa.  St.  24 ;  32  Atl.  Rep.  85.  The  covenant  against  incumbrances  is  not  broken 
by  an  assessment  levied  on  the  property  but  not  "  wholly  confirmed  "  and 
entered  on  the  record  of  assessments  until  after  the  conveyance,  though  the 
assessment  proceedings  were  begun  prior  thereto.  Real  Est.  Corp.  v.  Harper, 
74  N.  Y.  Supp.  1065;  70  App.  Div.  64. 

"Green  v.  Tidball,  26  Wash.  338;  67  Pac.  Rep.  84. 

"Lathers  v.  Keogh,  T09  N.  Y*  583;   17  N.  E.  Rep.  131. 


COVENANT    AGAINST    INCUMBEANCES.  297 

than  by  a  sale  of  the  land.64  Nor  because  they  are  invalid,  if  the 
land  be  liable  to  reassessment.66  Such  reassessment  will  relate 
back  to  the  entry  of  the  land  on  the  original  assessment  roll.66  The 
grantee,  complaining  of  a  tax  or  assessment,  must  show  that  it 
was  a  valid  and  subsisting  lien  when  the  deed  was  executed.  He 
must  show  that  the  proceedings  were  regular,  and  that  everything 
was  done  necessary  to  make  the  tax  or  assessment  valid.67  The 
same  evidence  is  required  of  him  in  this  respect  as  if  he  were  a 
purchaser  at  a  sale  to  enforce  the  tax  lien,  and  was  asserting  his 
title  in  ejectment.68  If  the  tax  was  voluntarily  paid  by  the  grantee 
without  previous  demand  on  the  grantor,  the  latter  may  show  that 
the  tax  was  invalid.69 

In  England,  a  land  tax  is  not  deemed  an  incumbrance,  because  it 
is  supposed  to  have  been  contemplated  by  the  parties ;  and  if  noth- 
ing is  said  upon  the  subject,  the  purchaser  will  take  the  estate  sub- 
ject to  the  liability  of  the  tax-.70 

§  125.  Outstanding  estate  or  interest  in  the  premises.  An 
outstanding  estate  or  interest,  less  than  a  fee,71  in  the  granted  prem- 
ises is  an  incumbrance,  and,  therefore,  operates  a  breach  of  the 

"Cochran  v.  Guild,  106  Mass.  29;  8  Am.  Rep.  296.  The  same  rule  has 
been  applied  where  the  tax  was  assessed  after  the  execution  of  a  contract  of 
sale,  but  before  the  execution  of  a  conveyance  of  the  premises.  Gheen  v. 
Harris,  170  Pa.  St.  644;  32  Atl.  Rep.  1094. 

•"Peters  v.  Meyers,  22  Wis.  602. 

"  Coburn  v.  Litchfield,  134  Mass.  449.     Cadmus  v.  Fagan,  47  N.  J.  L.  540. 

"Patterson  v.  Yancey,  81  Mo.  379.  Robinson  v.  Murphy,  33  Ind.  482; 
Kirkpatrick  v.  Pearce,  107  Ind.  520.  Mitchell  v.  Pillsbury,  5  Wis.  410. 
But  see  Voorhis  v.  Forsyth,  4  Biss.  (C.  C.)  409,  where  it  was  held  unneces- 
sary to  aver  that  the  tax  was  valid,  such  being  the  prima  facie  presunption. 
Where  A.  bought  land  of  B.  in  a  city,  B.  having  previously  unlawfully  con- 
nected a  sewer  on  the  land  with  a  public  sewer,  no  right  so  to  use  the  sewer 
passed  by  implication,  and  A.  having  been  compelled  to  pay  the  city  a  fee  for 
connecting  the  sewer,  could  not  recover  the  amount  thereof  on  B's.  warranty 
against  incumbrances,  such  fee  not  being  a  lien  on  the  premises  in  favor  of 
the  city.*  Bumstead  v.  Cook,  169  Mass.  410;  48  N.  E.  Rep.  767. 

"Kennedy  v.  Newman,  1  Sandf.   (N.  Y.  S.  C.)   187. 

"Balfour  v.  Whitman,  89  Mich.  202;   50  N.  W.  Rep.  744. 

»1  Sugd.  Vend.    (8th  Am.  ed.)   487. 

n  The  fact  that  the  fee  is  outstanding,  while  a  breach  of  the  covenant  of 
seisin,  is  no  breach  of  the  covenant  against  incumbrances.  Huron  v.  Stratton, 
120  Ala.  145;  23  So.  Rep.  81. 


298  MARKETABLE    TITLE   TO   BEAL   ESTATE. 

covenant  against  incumbrances  ;72  such,  for  example,  as  the  right  in 
a  stranger  to  enter  upon  the  premises  and  cut  and  remove  timber 
therefrom  ;73  or  a  prior  sale  of  "  all  the  iron  and  coal "  on  the 
granted  land,  with  right  of  way  and  privilege  of  removal.74  So 
also  an  interest  in  the  premises  in  favor  of  a  third  person,  who 
holds  as  a  tenant  in  common,  is  an  incumbrance.75  But  an  adverse 
equitable  claim  to  the  premises  is  not  an  incumbrance.76  The 
better  opinion  seems  to  be  that  a  condition  which  may  work  a  for- 
feiture of  the  estate  granted,  or  a  contingency  upon  which  the  estate 
is  liable  to  be  determined  in  the  hands  of  the  purchaser,  amounts 
to  a  breach  of  the  covenant  against  incumbrances,77  such,  for  ex- 
ample, as  a  provision  in  the  deed  that  only  buildings  of  a  certain 
kind  should  be  created  on  the  premises  conveyed,  with  reversion 
to  the  grantor  in  case  of  a  breach  of  the  condition.78 

The  covenant  against  incumbrances  is  broken  by  the  existence  of 
an  outstanding  term  of  years  in,  or  lease  of,  the  granted  prem- 
ises.79 But  where  the  conveyance  is  taken  with  knowledge  that  the 

"Jenkins  v.  Buttrick,  1  Met.   (Mass.)   480. 

*  Spurr  v.  Andrews,  6  Allen  (Mass.),  420.  Cathcart  v.  Bowen,  5  Pa.  St. 
317.  Clark  v.  Ziegler,  79  Ala.  346;  85  Ala.  154;  4  So.  Rep.  669.  Gates  T. 
Parmly,  93  Wis.  294;  66  N.  W.  Rep.  253.  But  in  Southwest  Va.  Min.  &  L. 
Go.  v.  Chase,  95  Va.  50,  27  S.  E.  Rep.  826,  it  was  held  that  purchasers  who 
accepted  a  warranty  deed  with  notice  that  standing  timber  on  the  land  had 
been  conveyed  to  a  third  party,  thereby  waived  any  claim  to  an  abatement 
of  the  purchase  money  in  the  future. 

T«  Stanbaugh  v.  Smith,  23  Ohio  St.  584. 

"Comings  v.  Little,  24  Pick.    (Mass.)    266. 

"Marple  v.  Scott,  41  111.  50. 

"  COOLEY,  J.,  in  Post  v.  Campau,  42  Mich.  90,  citing  Jenks  v.  Ward,  4  Mete. 
(Mass.)  412.  A  possibility  may  be  an  incumbrance.  Sir  F.  Moore's  Rep.  249, 
pi.  393;  Haverington's  Case,  Owen,  6.  In  Van  Rensselaer  v.  Kearney,  11 
How.  (U.  S.)  316,  it  was  contended  by  counsel,  arguendo,  that  an  estate  in 
expectancy  outstanding  is  an  incumbrance  on  the  land,  citing  14  Vin.  Abr. 
352,  tit.  Encumbrance  H.  Sugden  Vend,  (old  ed.)  527,  §  9.  In  Estabrook  v. 
Smith,  6  Gray  (Mass.),  572;  66  Am.  Dec.  443,  it  was  held  that  a  condition  in 
a  deed  that  the  grantee  (plaintiff's  vendor)  should  build  a  house  on  the 
premises  within  a  year  from  the  date  of  the  deed  was  not  an  incumbrance. 

"Locke  v.  Hale,  165  Mass.  20;  42  N.  E.  Rep.  331. 

T»  Cross  v.  Noble,  67  Pa.  St.  74,  77 ;  Dech's  Appeal,  57  Pa.  St.  467.  Pease  v. 
Christ,  31  N.  Y.  141;  Giles  v.  Dugro,  1  Duer  (N.  Y.),  331.  Taylor  v.  Heitz, 
87  Mo.  660.  Edwards  v.  Clark,  83  Mich.  246;  47  N.  W.  Rep.  112.  Fritz  v. 
Pusey,  31  Minn.  368;  18  N.  W.  Rep.  94.  Porter  v.  Bradley,  7  R.  I.  538. 


COVENANT   AGAINST   INCUMBRANCES.  299 

land  is  in  the  possession  of  a  lessee,  the  existence  of  the  lease  will 
not,  under  a  statute  transferring  the  constructive  possession  to  the 
grantee  without  attornment  by  the  tenant,  operate  a  breach  of  the 
covenant;80  nor,  it  is  apprehended,  independently  of  any  statute, 
where  there  is  an  actual  attornment  by  the  tenant,  or  an  apportion- 
ment of  the  rent  between  the  parties.81  And  generally  it  may  be 
said  that  if  the  purchaser  knows  that  the  premises  are  in  the  pos- 
session of  a  tenant,  and  no  special  contract  is  made,  the  occupant 
will  become  tenant  to  the  purchaser,  and  there  will  be  no  breach  of 
the  covenant  against  incumbrances.82  Nor  will  the  covenant  be 
broken  if  the  purchaser  accepts  an  assignment  of  the  lease  ;M  nor 
if  the  conveyance  of  the  fee  be  made  expressly  subject  to  the  lease ; 
in  such  a  case  the  rent  is  an  incident  to  the  reversion,  and  passes 
with  it.84  An  outstanding  life  estate  in  a  stranger  is  an  iucum- 
brance.86  The  weight  of  authority  is  that  the  covenant  is  broken  by 
a  claim  for  dower  in  the  granted  premises,  whether  the  right  be 
inchoate  and  contingent,  or  consummate  by  the  death  of  the  hus- 

Grice  v.  Scarborough,  2  Spear  L.  (S.  C.)  649;  42  Am.  Dec.  391.  Clark  v. 
Fisher,  54  Kans.  403;  38  Pac.  Rep.  493;  Smith  v.  Davis,  44  Kans.  362;  24 
Pac.  Rep.  428.  Brass  v.  Vandecar,  (Neb.)  96  N.  W.  Rep.  1035.  An  outstand- 
ing lease  of  the  premises  is  an  incumbrance  entitling  the  grantee  to  damages, 
if  he  bought  the  property  for  speculation,  and  the  grantor  was  aware  of  that 
purpose.  Batchelder  v.  Sturgis,  3  Cush.  (Mass.)  201.  An  agreement  that 
in  a  certain  event  the  lessee  shall  have  a  further  term  in  the  demised 
premises,  is  no  incumbrance.  Weld  v.  Traip,  14  Gray  (Mass.),  330. 

"Kellum  v.  Berkshire  Life  Ins.  Co.,  101  Ind.  455.  Ream  v.  Goslee,  21  Ind. 
App.  241 ;  52  N.  E.  Rep.  93.  The  rule  stated  in  the  text  was  approved  in 
Demars  v.  Koehler,  60  N.  J.  L.  314;  38  Atl.  Rep.  808.  But  this  decision  was 
reversed  on  appeal  (62  N.  J.  L.  203;  41  Atl.  Rep.  720),  the  court  reaching 
the  conclusion  that  the  right  to  recover  for  the  breach  was  not  affected  by 
notice  of  the  existence  of  the  lease,  mainly  upon  the  ground  that  in  New 
Jersey  parol  evidence  is  not  admissible  to  vary  the  effect  of  the  covenant. 

"Rawle  Covts.  for  Title  (5th  ed.),  §  78.     Haldane  v.  Sweet,  55  Mich.  196. 

81  Lindley  v.  Dakin,  13  Ind.  388;  Page  v.  Lashley,  15  Ind.  152.  In  Edwards 
v.  Clark,  83  Mich.  246;  47  N.  W.  Rep.  112,  it  was  said  that  there  would  still 
be  a  breach  of  the  covenant,  notwithstanding  the  acceptance  of  rent,  but  that 
the  amount  so  accepted  must  be  deducted  from  the  damages  for  the  breach. 

"Gale  v.  Edwards,  52  Me.  363. 

"Pease  v.  Christ,  31  N.  Y.  141.  Spaulding  v.  Thompson,  119  Iowa,  484; 
93  N.  W.  Rep.  498. 

M  Christy  v.  Ogle,  33  111.  295.  Mills  v.  Catlin,  22  Vt.  98,  aemble.  See  cases 
cited  below. 


300  MARKETABLE    TITLE    TO    REAL    ESTATE. 

band.8*  If  the  covenant  be  special,  against  any  claim  for  dower 
which  a  certain  person  may  set  up,  it  will  not  be  broken  until  the 
right  to  dower  has  been  perfected  by  the  husband's  death.87  The 
right  of  a  wife  to  elect  whether  she  will  take  dower  in  lieu  of  a 
jointure  or  settlement,  is  such  an  incumbrance  on  land  acquired 
by  the  husband  after  the  settlement,  as  amounts  to  a  breach  of  a 
covenant  against  incumbrances  in  a  subsequent  conveyance  of  the 
land.88  The  rule  that  the  covenant  is  broken  by  the  existence  of 
a  contingent  right  of  dower  in  the  land  conveyed  is  not  changed 
by  statutes  which  substitute  for  dower  a  fee  simple  or  other  inter- 
est in  a  portion  of  the  husband's  lands.89  The  grantor,  having 
been  served  with  notice  of  a  proceeding  to  establish  the  dower 
right  is,  in  the  absence  of  fraud  or  collusion,  bound  by  a  judgment 
in  favor  of  the  plaintiff.90 

§  126.  Easements  or  physical  incumbrances.  An  easement  or 
servitude  to  which  the  granted  premises  are  subject,  and  which 
was  unknown  to  the  purchaser  at  the  time  of  the  conveyance,  or 
subject  to  which  he  cannot  be  reasonably  presumed  to  have  taken 
the  premises,  constitutes  everywhere  a  breach  of  the  covenant 

"Shearer  v.  Ranger,  22  Pick.  (Mass.)  447;  Jenks  v.  Ward,  4  Met.  (Mass.) 
412;  Harrington  v.  Murphy,  109  Mass.  299.  Blanchard  v.  Blanchard,  48  Me. 
174;  Donnell  v.  Thompson,  1  Fairf.  (Me.)  170;  25  Am.  Dec.  216;  Runnels  v. 
Webber,  59  Me.  490;  Smith  v.  Connell,  32  Me.  126;  Porter  v.  Noyes,  2  Greenl. 
(Me.)  27;  11  Am.  Dec.  30.  Russ  v.  Perry,  49  N.  H.  549;  Fitts  v.  Hoitt,  17 
N.  H.  530.  Carter  v.  Denman,  3  Zab.  (N.  J.  L.)  273.  Jones  v.  Gardiner,  10 
Johns.  (N.  Y.)  266.  Durrett  v.  Piper,  58  Mo.  551;  Henderson  v.  Henderson, 
13  Mo.  151;  Walker  v.  Dearer,  79  Mo.  664;  Ward  v.  Ashbrook,  78  Mo.  515. 
Contra,  dictum  of  STORY,  J.  in  Powell  v.  Munson,  3  Mason  (C.  C.),  355. 
Nyce  v.  Obertz,  17  Ohio,  70;  Johnson  v.  Nyce,  17  Ohio,  66;  49  Am.  Dec.  444. 
Hutchins  v.  Moody,  30  Vt.  658,  obiter.  Bostwick  v.  Williams,  36  111.  65, 
semble;  85  Am.  Dec.  385;  Humphrey  v.  Clement,  44  111.  299,  dictum.  It  is 
now  settled  in  Illinois  that  an  inchoate  right  of  dower  is  embraced  by  a 
covenant  against  incumbrances.  McCord  v.  Massey,  156  111.  123;  39  N.  E.  Rep. 
592;  Cowan  v.  Kane,  211  111.  527;  71  N.  E.  Rep.  1097;  Raftery  v.  Easelc-y, 
111  HI.  App.  413.  In  Blevins  v.  Smith,  (Mo.)  16  S.  W.  Rep.  213,  the  covo- 
nantee  bought  in  an  inchoate  right  of  dower  in  the  premises,  and  it  was  held 
that  he  was  not  entitled  to  damages,  there  being  no  means  of  computing  the 
value  of  the  interest.  THOMAS,  J.,  dissenting. 

"  Hudson  v.  Steare,  9  R.  I.  106. 

"Bigelow  v.  Hubbard,  97  Mass.  195. 

"Crowley  v.  Lumber  Co.,  66  Minn.  400;  69  N.  W.  Rep.  321. 

•Raftery  v.  Easeley,  111  111.  App.  413. 


COVENANT    AGAINST    INCUMBRANCES.  301 

against  incumbrances.91  Such,  for  example,  as  a  private  right  of 
uay  over  the  premises;92  a  building  restriction  running  with  the 
land,  and  binding  the  covenantee  ;93  an  obligation  to  maintain  a  di- 
vision fence;04  the  right  in  a  stranger  to  maitnain  a  drain  across 
the  warranted  land  ;95  the  right  to  conduct  water  from  a  spring  on 

"  See  cases  cited  in  the  notes  below. 

"Blake  v.  Everett,  1  Allen  (Mass.),  248;  Wetherbee  v.  Bennett,  2  Allen 
(Mass.),  428;  Harlow  v.  Thomas,  15  Pick.  (Mass.)  66.  Wilson  v.  Cochran, 

46  Pa.  St.  233;  86  Am.  Dec., 574.     Richmond  v.  Ames,  164  Mass.  467;  41  N. 
E.  Rep.  671.     Teague  v.  Whaley,  20  Ind.  App.  26;  50  N.  E.  Rep.  41;  Young 
v.  Gower,  88  111.  App.  70.     The  purchaser's  knowledge  at  the  time  of  the 
covenant,  that  there  was  a  passway  over  the  land,  does  not  affect  his  right 
to  recover,  where  he  did  not  know  that  such  passway  was  an  easement  en- 
forcible  against  the  owner  of  the  premises.     Perry  v.  Williamson,    (Tenn.) 

47  S.  W.  Rep.  189.    A  private  right  of  way  over  the  premises  is  a  breach  of 
the  covenant  for  quiet  enjoyment,  though  the  covenantee  bought  with  notice 
of  the  easement.    Eller  v.  Moore,  63  N.  Y.  Supp.  88;  48  App.  Div.  403. 

"Roberts  v.  Levy,  3  Abb.  Pr.  (N.  S.)  (N.  Y.)  311.  Greene  v.  Creighton, 
7  R.  I.  1.  A  "condition"  in  a  conveyance  that  no  buildings  shall  be  erected 
on  a  particular  part  of  the  lot,  and  that  no  buildings  of  less  than  a  certain 
height  shall  be  erected  thereon,  is  a  building  restriction  operating  a  breach 
of  the  covenant  against  incumbrances,  and  not  a  condition  which  may  defeat 
the  estate  in  case  of  a  breach.  Ayling  v.  Kramer,  133  Mass.  12.  A  condition 
that  during  a  certain  number  of  years  only  one  house  shall  be  erected  on  the 
premises,  which  shall  be  used  for  a  dwelling  house  only,  and  by  but  one  family, 
constitutes  a  breach  of  a  covenant  against  incumbrances.  Foster  v.  Foster, 
62  N.  H.  46.  A  grantor  has  a  right  to  impose  building  restrictions,  and  they 
are  valid  incumbrances.  Coudert  v.  Sayre,  (N.  J.  Eq. )  19  Atl.  Rep.  190. 
Whitney  v.  Railroad  Co.,  11  Gray  (Mass.),  359;  71  Am.  Dec.  715.  Building 
restrictions,  and  restrictions  as  to  the  use  of  the  granted  premises,  whether 
they  run  with  the  land  or  not,  will  be  enforced  in  equity  against  a  purchaser, 
with  notice.  Coudert  v.  Sayre,  (N.  J.  Eq.)  19  Atl.  Rep.  190. 

M  Kellogg  v.  Robinson,  6  Vt.  270 ;  27  Am.  Dec.  550.  Bronson  v.  Coffin,  108 
Mass.  175;  11  Am.  Rep.  335.  Ensign  v.  Colt,  75  Conn.  Ill;  52  Atl.  Rep.  829. 
Sherwood  v.  Johnson,  28  Ind.  App.  277,  62  N.  E.  Rep.  645.  An  agreement  to 
maintain  a  certain  fence  upon  designated  premises,  recorded  so  as  to  bind  a 
subsequent  purchaser,  constitutes  a  breach  of  covenant  against  incumbrances. 
Burbank  v.  Pillsbury,  48  N.  H.  475;  97  Am.  Dec.  633.  But  see  Parish  v. 
Whitney,  3  Gray  (Mass.),  516,  where  it  was  held  that  a  covenant  to  per- 
petually maintain  a  division  fence,  contained  in  the  deed  under  which  the 
grantor  holds,  does  not  run  with  the  land,  is  not  binding  on  a  subsequent 
grantee,  and  is,  therefore,  no  breach  of  a  covenant  against  incumbrances  in  a 
conveyance  to  such  subsequent  purchaser.  Explained  in  Bronson  v.  Coffin, 
108  Mass.  186;  11  Am.  Rep.  335,  and  see  cases  there  collected,  showing  that 
such  a  covenant  in  a  deed  poll  does  run  with  the  land. 

*  Ladd  v.  Noyes,  137  Mass.  151. 


302  MARKETABLE    TITLE    TO    REAL    ESTATE. 

the  granted  premises,  through  pipes  laid  beneath  the  surface;9* 
the  right  to  have  the  eaves  of  a  building  on  an  adjoining  lot  over- 
hang the  granted  premises,  so  as  to  drip  water  thereon  ;9T  the  right 
in  an  adjoining  proprietor  to  dam  up  and  use  the  water  of  a  stream 
running  through  the  granted  premises  ;98  the  right  in  a  stranger  to 
divert  the  water  from  a  stream  on  such  premises ;"  the  right  in  a 
stranger  to  flow  the  premises  with  the  waters  of  a  mill  dam.1 
These,  and  other  easements  and  servitudes,2  all  constitute  breaches 

"McMullin  v.  Wooley,  2  Lans.  (N.  Y.)  394.  Melick  v.  Cross,  62  N.  J. 
Eq.  545;  51  Atl.  16. 

"Carbrey  v.  Willis,  7  Allen  (Mass.),  364;  83  Am.  Dec.  688. 

"Morgan  v.  Smith,  11  111.  199.     Huyck  v.  Andrews,  113  N.  Y.  81. 

"Mitchell  v.  Warner,  5  Conn.  498,  527,  06. 

1  Craig  v.  Lewis,  110  Mass.  377;  Isele  v.  Arlington  Sav.  Bank,  135  Mass. 
142.  Patterson  v.  Sweet,  3  111.  App.  550.  Whether  known  to  the  purchaser 
at  the  time  of  the  conveyance  or  not.  Medlar  v.  Hiatt,  8  Ind.  171.  Contra, 
Kutz  v.  McCune,  22  Wis.  628;  99  Am.  Dec.  85.  The  right  of  a  mill  owner  to 
enter  on  adjoining  lands,  through  which  a  raceway  from  the  mill  passes,  for 
the  purpose  of  cleansing  such  raceway,  is  a  right  necessary  to  the  enjoyment 
of  his  easement,  which  he  would  have  independently  of  agreement  or  pre- 
scription, and  is,  therefore,  not  an  incumbrance  of  which  a  grantee  of  the 
premises  traversed  by  the  raceway  can  complain.  Prescott  v.  Williams,  5 
Met.  (Mass.)  433;  39  Am.  Dec.  688.  As  to  whether  the  right  in  a  down- 
stream mill  owner  to  raise  the  water  in  his  dam  to  a  height  that  interferes 
with  an  adjoining  up-stream  mill  owner,  see  Carey  v.  Daniels,  8  Met.  (Mass.) 
466.  An  owner  of  land  may  by  parol  waive  his  right  to  damages  against  a 
person  flowing  his  land  with  a  mill  dam ;  but  such  waiver  is  not  binding  on  his 
grantee,  and,  therefore,  constitutes  no  breach  of  his  covenant  against  incum- 
brances.  Fitch  v.  Seymour,  9  Met.  (Mass.)  466. 

*  The  right  in  an  adjoining  owner  to  use  a  stairway  on  the  granted  premises 
is  a  breach  of  the  covenant  against  incumbrances.  McGowen  v.  Myers,  60 
Iowa,  256;  14  N.  W.  Rep.  788.  So,  also,  the  right  of  a  railroad  company  to 
take  earth  and  gravel  from  the  granted  premises.  Taylor  v.  Gilman,  25  Vt. 
413.  The  right  of  a  stranger  to  enter  on  the  premises  for  the  purpose  of 
cleansing  a  drain.  Smith  v.  Sprague,  40  Vt.  43.  The  right  of  a  canal  com- 
pany to  appropriate  the  water  in  a  stream  bounding  or  traversing  the  prem- 
ises. Ginn  v.  Hancock,  31  Me.  42.  A  condition  that  no  ardent  spirits  shall 
be  sold  on  the  premises;  such  a  condition  is  not  invalid  as  being  in  restraint 
of  trade.  Hatcher  v.  Andrews,  5  Bush  (Ky.),  561.  The  owner  of  a  lot 
erected  a  building  thereon  with  the  stoop  extending  by  mistake  on  an  adjoin- 
ing lot,  of  which  he  was  an  owner  in  common  with  another.  He  then  sold 
the  house  and  lot,  and  afterwards  acquired  title  in  severalty  to  the  adjoining 
lot  encroached  upon  by  the  stoop.  Held,  that  such  acquisition  did  not  create 
an  easement  entitling  the  owner  of  the  first  lot  to  maintain  the  stoop  on  the 
second;  and  hence,  there  resulted  no  breach  of  a  covenant  against  incum- 
brances in  a  conveyance  by  the  original  owner  of  the  lot  encroached  upon. 
Farley  v.  Howard,  70  N.  Y.  Supp.  51;  60  App.  Div.  193. 


COVENANT    AGAINST    INCUMBRANCES.  303 

of  a  covenant  against  incumbrances,  if  the  purchaser  had  no  notice 
of  them  at  the  time  of  the  conveyance,  and,  in  some  of  the  States, 
whether  he  did  or  did  not  have  such  notice.3  If  the  easement  or 
servitude  complained  of  consist  of  a  mere  license,  revocable  at  the 
will  of  the  licensor,  it  will  not,  of  course,  amount  to  an.  incum- 
brance,  and  will,  therefore,  operate  no  breach  of  the  covenant.4 

A  lease  of  a  right  to  an  adjoining  proprietor  to  use  a  wall  on  the 
granted  premises  as  a  party  wall  is  a  breach  of  the  covenant  against 
incumbrances.6  So,  also,  a  wall  standing  wholly  on  one  lot  with  a 
right  in  the  adjoining  proprietor  to  use  it  creates  a  breach.6  But 
the  better  opinion  seems  to  be  that  a  wall  standing  equally  on  both 
lots,  and  held  in  common  by  the  adjoining  proprietors,  is  not  an 
incumbrance,  but  a  valuable  appurtenant  which  passes  with  the 
title  to  the  property.7  A  covenant  between  adjoining  proprietors 
that  one  may  build  a  party  wall,  and  that  the  other  shall  pay  half 
the  cost  if  he  afterwards  uses  the  wall,  runs  with  the  land  and 
binds  a  subsequent  purchaser  who  avails  himself  of  the  wall.8  In 
such  a  case,  it  is  apprehended,  that  if  the  purchaser  bought  with- 

•Post,  §  127. 

4  Patterson  v.  Sweet,  3  111.  App.  550. 

"Giles  v.  Dugro,  1  Duer   (N.  Y.),  331. 

•Mohr  v.  Parmelee,  43  N.  Y.  Super.  Ct.  320. 

'Hendricks  v.  Stark,  37  N.  Y.  106;  93  Am.  Dec.  949  (distinguished  in 
O'Neill  v.  Van  Tassell,  137  N.  Y.  297;  33  N.  E.  Rep.  314,  and  Corn  v.  Bass, 
59  N.  Y.  Supp.  315)  ;  Mohr  v.  Parmelee,  43  N.  Y.  Super.  Ct.  320.  The  exist- 
ence of  a  party  wall  on  the  granted  premises  is  no  breach  of  the  covenant 
against  incumbrances,  under  a  statute  authorizing  the  adjoining  owner  at 
any  time  to  build  such  a  wall  without  incurring  any  liability  to  the  owner. 
Bertram  v.  Curtis,  31  Iowa,  46.  And  where  by  statute  adjoining  proprietors 
have  the  right  to  use  division  walls  as  party  walls  no  breach  of  the  covenant 
occurs.  Barns  v.  Wilson,  116  Pa.  St.  303;  9  Atl.  Rep.  437. 

•Richardson  v.  Tobey,  121  Mass.  457;  23  Am.  Rep.  283;  Savage  v.  Mason,  3 
Cush.  (Mass.)  500.  Burlock  v.  Peck,  2  Duer  (N.  Y.),  90.  Compare  Cole  v. 
Hughes,  54  N.  Y.  444;  13  Am.  Rep.  611.  In  Mackey  v.  Harmon,  34  Minn.  168; 
24  N.  W.  Rep.  702,  the  whole  wall  was  built  by  H.,  under  an  agreement  that 
he  should  be  reimbursed  by  X.,  the  adjoining  owner,  if  he  should  afterwards 
join  to  the  wall.  X.  conveyed  to  the  plaintiff,  who  was  compelled  to  pay  one- 
half  the  cost  of  the  wall  in  order  to  build  to  it,  and  this  was  obviously  held 
a  breach  of  the  covenant  against  incumbrances  contained  in  X.'s  deed.  See, 
also,  Blondeau  v.  Sheridan,  81  Mo.  545;  Keating  v.  Korfhage,  8?  Mo.  524. 
Burr  v.  Lamaster,  (Neb.)  46  N.  W.  Rep.  1015.  An  owner  agreed,  oy  recorded 
contract,  to  pay  half  the  cost  of  a  party  wall  if  one  should  be  built  so  as  to 
be  capable  of  use  by  him,  and  he  made  the  prospective  half  of  the  cost  a 


304  MARKETABLE    TITLE    TO    REAL    ESTATE. 

out  knowledge  of  his  liability  to  pay  such  cost  he  would  be  entitled 
to  recover  as  damages  the  amount  so  disbursed  by  him. 

A  mere  dedication  to  public  uses  without  evidence  of  use  or 
acceptance  by  the  public  authorities  is  no  breach  of  the  covenant 
against  incumbrances.9 

§  127.  Notice  of  easement.  There  can  be  no  doubt  that  a 
pecuniary  charge  upon  the  granted  premises  such  as  a  judgment,  a 
mortgage,  or  a  vendor's  lien,  constitutes  a  breach  of  the  covenant 
against  incumbrance,  though  the  purchaser  was  fully  advised  of  its 
existence  when  the  contract  W7as  made  or  the  conveyance  taken. 
The  covenant  is  taken  for  the  protection  of  the  purchaser  in  case 
the  incumbrance  should  not  be  removed  by  the  seller  and  the  pur- 
chaser be  compelled  to  pay  it  at  some  future  day.10  But  such  an 
incumbrance  in  nowise  interferes  with  the  present  enjoyment  and 
possession  of  the  estate,  and  is  seldom  if  ever  considered  in  fixing 
the  purchase  price  of  the  property,  unless  the  purchaser  under- 
takes to  remove  it  as  a  part  of  the  consideration.11  Therefore,  the 
question  of  notice  of  the  existence  of  the  incumbrance  is  immate- 
rial to  the  right  of  the  purchaser  to  recover  on  the  covenant.  But 
with  respect  to  an  easement  visibly  and  notoriously  affecting  the 
physical  condition  of  the  land  at  the  time  of  the  purchase,  such  as  a 
public  highway,12  a  railway,13  or  a  canal,  a  different  rule  as  to  the 

lien  on  his  land.  Afterward,  without  having  built,  he  conveyed  with  war- 
ranty against  incumbrances.  It  was  held  that  on  the  purchaser's  building 
the  land  was  charged  with  a  lien  as  per  the  party  wall  contract.  Arnold  v. 
Chamberlain,  14  Tex.  Civ.  App.  634;  39  S.  W.  Rep.  201. 

•De  Long  v.  Spring  Lake  Imp.  Co.,  (N.  J.  L.)  59  Atl.  Rep.  1034. 

10  Ante,  cases  cited,  note  44,  p.  291. 

11  Kutz  v.  McCune,  22  Wis.  628 ;  99  Am.  Dec.  85,  where  it  was  said  that  a 
pecuniaiy  incumbrance  does  not  affect  the  physical  condition  of  the  premises. 
It  is  a  mere  incident,  and  where  the  purchaser  takes  a  covenant  against  in- 
cumbrances, there  is  no  reasonable  ground  for  supposing  that  he  intended  to 
have  his  land  subsequently  sold  to  pay  the  vendor's  debt,  or  else  pay  it  himself. 

12  A  public  highway  through  the  granted  premises,  laid  out,  opened,  in  use 
and  known  to   the  purchaser,  is  no  breach  of  the  covenant  against   incum- 
brances.    Whitbeck  v.  Cook,  15  Johns.   (N.  Y.)   483;  8  Am.  Dec.  272,  leading 
case,  in  which,  however,  the  covenant  was  that  of  seisin,  and  not  against  in- 
cumbrances.    The  principle  is  the  same  in  either  case.     Huyck  v.  Andrews, 
113  N.  Y.  81;  Hymes  v.  Esty,  116  K  Y.  501.    Smith  v.  Hughes,  50  Wis.  620. 
Scribner  v.  Holmes,  16  Ind.  142.     Butte  v.  Riffe,  78  Ky.  352.    Weller  v.  Trust 
Co.,  23  Ky.  Law  R.  1136;  64  S.  W.  Rep.  843.  Lallande  v.  West,  18  La.  Ann. 


COVENANT    AGAINST    INCTJMBEANCES.  305 

effect  of  notice  upon  the  right  to  recover  has  been  established  in 
many  of  the  States.  In  such  a  case  the  purchaser  has  no  contingent 

290.  A  public  highway  is  generally  regarded  as  a  benefit  to  the  land;  and 
whether  so  or  not,  the  purchaser  is  presumed  to  have  taken  it  into  considera- 
tion, and  to  have  fixed  the  price  with  reference  to  its  supposed  advantages  or 
disadvantages.  STAPLES,  J.,  in  Jordan  v.  Eve,  31  Grat.  (Va.)  1.  "To  hold 
that  a  public  road  running  through  a  tract  of  land,  which  was  known  to  the 
purchaser  at  the  time  of  his  purchase,  is  such  an  incumbrance  as  would  con- 
stitute a  breach  of  a  covenant  of  warranty  against  incumbrances,  would 
produce  a  crop  of  litigation  in  this  State  that  would  be  interminable."  Per 
curiam.  Desverges  v.  Willis,  56  Ga.  515;  21  Am.  Rep.  289.  Ake  v.  Mason, 
101  Pa.  St.  21.  This  was  an  extreme  case.  The  highway  (a  street)  had  been 
laid  out,  but  not  opened,  and  the  grantee  had  no  other  notice  of  its  existence 
than  constructive  notice  of  the  proceedings  under  which  it  was  laid  out.  A 
strip  was  taken  from  one  end  of  the  premises  by  the  highway.  This  was  held 
no  breach,  SHARSWOOD,  C.  J.,  and  TURNKEY,  J.,  dissenting.  It  appeared,  how- 
ever, that  the  condemnation  money  had  not  been  paid,  and  it  was  intimated 
that  the  remedy  of  the  grantee  vas  against  the  public  authorities.  High- 
way no  breach;  Smith  v.  Hughes,  50  Wis.  620.  Scribner  v.  Holmes,  16 
Ind.  142.  An  alley  known  to  the  purchaser  is  no  incumbrnace.  Haldane 
v.  Sweet,  55  Mich.  196,  per  COOLEY,  J.,  who  said:  "The  alleys  were  open 
to  observation  at  the  time  (of  the  purchase),  and  the  (grantee)  must  have 
known  all  about  them  and  bought  with  them  in  mind."  If  the  highway  be  laid 
out,  but  not  opened,  and  the  purchaser  has  no  actual  notice  of  its  existence,  he 
will  be  entitled  to  damages.  Hymes  v.  Esty,  116  N.  Y.  501.  People's  Sav. 
Bank  v.  Alexander,  3  Cent.  Rep.  388.  So,  also,  where  the  premises  encroach 
upon  a  public  highway,  but  the  encroachment  is  not  visible  to  the  purchaser. 
Trice  v.  Kayton,  84  Va.  217;  4  S.  E.  Rep.  377.  If  the  highway  be  merely 
laid  out  and  not  visibly  opened,  and  there  be  nothing  to  charge  the  purchaser 


13  Smith  v.  Hughes,  50  Wis.  620.  This  would  probably  be  so  held  wherever 
it  is  held  that  a  public  highway  known  to  the  purchaser  would  not  be  an 
incumbrance.  And  obviously  wherever  it  is  held  that  a  public  highway  is 
such  a  breach,  a  railway  through  the  premises  would  also  be  so  held.  Kellogg 
v.  Malin,  50  Mo.  496;  11  Am.  Rep.  426.  Beach  v.  Miller,  51  111.  206;  2  Am. 
Rep.  290.  Barlow  v.  McKinley,  24  Iowa,  70 ;  Kostendader  v.  Pierce,  37  Iowa, 
645.  Fierce  v.  Houghton  (Iowa),  98  N.  W.  Rep.  306.  Burke  v.  Hill,  48 
Ind.  52;  17  Am.  Rep.  731.  Farrington  v.  Tourtellot,  39  Fed.  Rep.  738. 
In  Gerald  v.  Elley,  51  Iowa,  317,  it  was  held  that  the  mere  fact  that  a  rail- 
road company  exercises  a  right  of  way,  is  not  of  itself  a  breach  of  the  cove- 
nant against  incumbrances.  The  company  may  be  a  trespasser.  It  must  be 
shown  that  the  right  of  way  has  been  lawfully  acquired.  The  grantor  connot 
have  his  covenant  against  incumbrances  reformed  on  the  ground  that  he  did 
not  know  that  it  would  extend  to  and  embrace  a  railroad  right  of  way  over 
the  land,  known  to  the  grantee  when  the  covenant  was  made.  Gerald  v.  Elley, 
45  Iowa,  322.  Of  course  an  unopened  railroad  right  of  way  will  constitute  a 
breach  of  the  covenant  against  incumbrances.  Bruns  v.  Schreiber,  (Minn.) 
51  N.  W.  Rep.  120. 

20 


306  MABKETABLE    TITLE    TO    REAL   ESTATE. 

or  prospective  enforcement  of  the  incumbrance  to  provide  against 
with  covenants  for  title.  There  would  be  neither  reason,  utility, 
nor  convenience  in  requiring  the  vendor  to  covenant  against  a  fact 
that  depreciates  the  value  of  the  premises,  but  is  capable  of  accu- 
rate and  equitable  adjustment  between  the  parties  in  fixing  the 
purchase  price.  The  purchaser  is  presumed  to  have  taken  into 
consideration  the  existence  of  the  incumbrance,  and  any  loss  or 

with  notice  of  its  existence,  the  covenant  will  of  course  be  broken.  James  v. 
Warehouse  Co.,  (Ky.)  56  S.  W.  Rep.  19.  Hymes  v.  Esty,  116  N.  Y.  501,  the 
court  saying  that  the  rule  that  a  covenant  of  warranty  is  not  broken  by  the 
existence  of  a  public  highway  through  the  warranted  premises  rests  upon 
the  presumption  arising  from  the  opportunity  furnished  the  purchaser  by  the 
apparent  existence  or  use  of  the  highway  to  take  notice  of  it,  and  in  such 
case  he  is  charged  with  knowledge  and  is  presumed  to  have  purchased  with 
reference  thereto.  But  this  rule  does  not  apply  where,  at  the  time  of  the 
conveyance,  there  was  no  indication  or  notice,  actual  or  constructive,  of  the 
existence  of  a  highway  or  public  easement;  in  such  case,  where  there  is  a 
subsequent  appropriation  for  a  highway  by  the  public  in  the  exercise  of  a  pre- 
existing right  (the  street  in  this  case  having  been  actually  laid  out  and  con- 
demned but  not  opened)  the  covenant  is  broken.  These  remarks  were  made 
in  respect  of  a  covenant  of  warranty,  but  they  apply  with  equal  force  to  the 
covenant  against  incumbrances.  In  the  following  cases  a  public  highway  over 
the  premises  has  been  held  a  breach  of  the  covenant  against  incumbrances, 
without  regard  to  the  question  of  notice  on  the  part  of  the  purchaser.  Kellogg 
v.  Ingersoll,  2  Mass.  101.  Hubbard  v.  Norton,  10  Conn.  422.  Butler  v.  Gale, 
27  Vt.  739.  Pritchard  v.  Atkinson,  3  N.  H.  335.  Of  course  if  the  public  road 
ha  s  been  located  but  not  opened,  it  will  be  treated  as  incumbrance.  Herrick  v. 
Moore,  19  Me.  313.  The  highway  must  be  shown  to  have  been  legally  laid  out. 
If  the  record  do  not  show  all  the  necessary  proceedings,  the  highway  must  have 
been  in  use  for  such  a  length  of  time  that  a  jury  would  be  justified  in  presum- 
ing that  the  road  was  legally  laid  out,  and  damages  paid  to  the  land  owners. 
Pritchard  v.  Atkinson,  3  N.  H.  336.  The  covenant  against  incumbrances  will 
not  be  broken  if  the  highway  merely  bounds  instead  of  traverses  the  premises. 
Frost  v.  Angier,  127  Mass.  212.  Austin  street,  formerly  a  private  way,  was 
laid  out  in  July,  1882.  Part  of  the  premises  taken  were  conveyed  as  bounded 
on  Austin  street,  with  covenant  against  incumbrances,  in  December,  1882.  In 
1883  the  street  was  opened  and  graded.  Held,  that  there  was  no  breach  of  the 
covenant  against  incumbrances,  even  though  the  grantor  had  executed  a 
release  of  damages  to  the  city,  and  that  the  grantee  could  not  recover  damages 
from  the  grantor  caused  by  lowering  the  grade  of  the  street.  Patten  v.  Fitz, 
138  Mass.  456.  A  street  laid  out,  and  dedicated  but  not  opened,  constitutes 
a  breach  of  a  covenant  against  incumbrances,  whether  the  city  had  or  had  not 
accepted  the  dedication.  Daisy  Realty  Co.  v.  Brown,  18  Ky.  Law.  R.  155; 
35  S.  W.  637.  Under  Mass.  Stats.,  1891,  no  incumbrance  is  created  by  pre- 
liminary proceedings  to  lay  out  a  street  in  Boston,  until  a  plan  is  filed. 
French  v.  Folsom,  181  Mass.  483;  93  N.  E.  Rep.  938. 


COVENANT    AGAINST    INCUMBEANCES.  307 

inconvenience  it  might  occasion  him,  and  to  have  agreed  upon  the 
consideration  to  be  paid  as  the  value  of  the  premises  with  the 
incumbrance.14  It  is  inconceivable  that  the  purchaser  would  agree 
to  pay  more  for  the  incumbered  premises  than  they  were  worth, 
merely  because  he  could  recover  damages  on  the  covenant  to  the 
extent  of  such  excess.  If  then,  having  bought  the  premises  at  their 
depreciated  value,  with  reference  to  the  visible  easement,  he  should 
be  permitted  to  recover  damages  for  the  breach  of  the  covenant 
against  incumbrances  resulting  from  such  easement,  it  is  plain  that 
he  would  be  twice  compensated  for  any  damage  or  depreciation  in 
value  which  the  premises  may  have  sustained.  In  some  of  the 
States  these  principles  are  declared  applicable  to  any  purchase 
with  notice  of  the  easement,  without  regard  to  the  nature  of  the 
easement,  whether  public  or  private  ;15  in  one  State,  at  least,  they 

"Patterson  v.  Arthur,  9  Watts  (Pa.),  152. 

"Deacon  v.  Doyle,  75  Va.  258.  Memmert  v.  McKeen,  112  Pa.  St.  315, 
where  the  alleged  incumbrance  consisted  of  the  stone  steps  of  an 
adjoining  house,  which  were  so  constructed  as  to  occupy  a  part 
of  the  sidewalk  in  front  of  the  plaintiff's  house.  Kutz  v.  McCune, 
22  Wis.  628;  99  Am.  Dec.  85,  a  mill  pond  of  many  years  standing. 
Haldane  v.  Sweet,  55  Mich.  196,  an  alley.  James  v.  Jenkins,  34  Md.  1;  6 
Am.  Rep.  300.  Here  the  question  was  whether  the  right  of  an  adjoining  pro- 
prietor to  forbid  the  erection  of  a  wall  on  the  granted  premises  to  such  a 
height  as  to  obstruct  the  light  and  air  from  his  windows,  constituted  a 
breach  of  a  covenant  of  special  warranty  in  a  conveyance  of  such  premises. 
Mr.  Justice  ALVEY,  answering  this  question,  and  delivering  the  opinion  of  the 
court,  said:  "This  depends  upon  the  apparent  and  ostensible  condition  of 
the  property  at  the  time  of  the  sale.  And  as  the  wall  had  been  erected,  and 
the  lights  therein  were  plainly  to  be  seen  when  the  appellant  purchased  the 
property  overlooked  by  them,  it  is  but  rational  to  conclude  that  he  contracted 
with  reference  to  that  condition  of  the  property,  and  that  the  price  was 
regulated  accordingly.  The  parties,  in  the  absence  of  anything  to  the  con- 
trary, are  presumed  to  have  contracted  with  reference  to  the  then  state  and 
condition  of  the  property,  and  if  an  easement  to  which  it  is  subject  be  open 
and  visible,  and  of  a  continuous  character,  the  purchaser  is  supposed  to  have 
been  willing  to  take  the  property  as  it  was  at  the  time,  subject  to  such  bur- 
den. That  being  so,  the  covenants  in  the  deed  must  likewise  be  construed  with 
reference  to  the  condition  of  the  property  at  the  time  of  conveyance.  The 
grantor,  by  his  covenant,  warranted  the  premises  as  they  were,  and  by  no 
means  intended  to  warrant  against  an  existing  easement  which  was  open  and 
visible  to  the  appellant,  and  over  which  the  former  hnd  no  power  or  control 
whatever.  To  construe  the  covenant  to  embrace  such  subject  would  most 
likely  defeat  the  understanding  and  intention  of  the  parties,  certainly  of  the 
grantor."  Citing  Washburn  on  Easements,  68,  and  approving  Patterson  v. 


308  MARKETABLE    TITLE    TO    REAL    ESTATE. 

are  restricted  to  the  single  case  of  a  purchase  with  notice  of  a 
public  highway  through  the  premises;16  and  in  others  they  are 
rejected  altogether,  upon  the  ground  that  notice  of  an  incum- 
brance  at  the  time  of  the  conveyance  cannot  affect  the  right  to 
recover  on  a  covenant  against  incumbrances.17  In  a  recent  well- 
considered  case  in  Pennsylvania18  it  was  observed  by  the  court  that 
incumbrances  are  of  two  kinds,  (1)  Such  as  affect  the  title;  and 
(2)  Such  as  affect  only  the  physical  condition  of  the  property. 
A  mortgage  or  other  lien  is  a  fair  illustration  of  the  former;  a 
public  road  or  right  of  way  of  the  latter.  Where  incumbrances 
of  the  former  class  exist,  the  covenant  against  incumbrances  is 
broken  the  instant  it  is  made,  and  it  is  of  no  importance  that  the 
grantee  had  notice  of  them  when  he  took  the  title.19  Such  incum- 
brances are  usually  of  a  temporary  character  and  capable  of  re- 
moval; the  very  object  of  the  covenant  is  to  protect  the  vendee 
against  them;  hence,  knowledge,  actual  or  constructive,  of  their 
existence  is  no  answer  to  an  action  for  the  breach  of  such  a  cove- 
Arthur,  9  Watts  (Pa.),  154.  See,  also,  Newbold  v.  Peabody  Heights  Co.,  70 
Md.  493;  17  Atl.  Rep.  372.  Constructive  notice  of  a  building  restriction  from 
the  record  of  a  deed  in  which  it  is  contained  does  not  effect  the  right  of  a  sub- 
sequent grantee  to  recover  on  a  covenant  against  incumbrances,  but  actual 
notice  of  the  restriction  it  was  intimated  would  go  in  mitigation  of  the 
damages.  Roberts  v.  Levy,  3  Abb.  Pr.  (N.  S.)  311. 

"New  York,  Huyck  v.  Andrews,  113  N.  Y.  81;  20  N.  E.  Rep.  581,  disap- 
proving Kutz  v.  McCune  and  Memmert  v.  McKeen,  supra. 

17  Van  Wagner  v.  Nostrand,  19  Iowa,  422;  Barlow  v.  McKinley,  24  Iowa,  69; 
McGowan  v.  Myers,  60  Iowa,  256 ;  14  N.  W.  Rep.  788 ;  Flynn  v.  White  Breast 
Coal  Co.,  72  Iowa,  738;  32  N.  W.  Rep.  471.  Fierce  v.  Houghton  (Iowa),  98 
N.  W.  Rep.  306.  Morgan  v.  Smith,  19  111.  199.  Butler  v.  Gale,  27  Vt.  739. 
Watts  v.  Fletcher,  107  Ind.  391;  8  N.  E.  Rep.  Ill;  Burk  v.  Hill,  48  Ind.  52; 
17  Am.  Rep.  731;  Medlar  v.  Hiatt,  8  Ind.  171;  Quick  v.  Taylor,  113  Ind.  540; 
16  N.  E.  Rep.  588.  In  this  case  it  seems  that  the  right  of  way  had  been  con- 
demned but  not  opened.  Teague  v.  Whaley,  20  Ind.  App.  26;  50  N.  E.  Rep. 
41;  Whiteside  v.  Magruder,  75  Mo,  App.  364,  an  unopened  railway  right  of 
way.  Foster  v.  Foster,  62  N.  H.  532.  See,  also,  cases  cited,  ante,  this  section, 
to  proposition  that  public  highway  or  railway  traversing  the  premises  is 
breach  of  covenant  against  incumbrances.  This  is  true  enough,  as  observed 
by  Mr.  Rawle  (Covts.  for  Title  [»th  ed.l,  §  76,  note  3),  where  the  thing  com- 
plained of  is  really  an  incumbrance,  but  loses  its  application  where  the  ques- 
tion is  whether  such  thing  is  in  fact  an  incumbrance. 

"Memmert  v.  McKeen,  112  Pa.  St.  320. 

19  Cathcart  v.  Bowman,  5  Pa.  St.  317;  Funk  v.  Voneida,  11  Serg.  &  R.  (Pa.) 
109;  14  Am.  Dec.  617. 


COVENANT   AGAINST    INCUMBRANCES.  309 

nant.  Where,  however,  there  is  a  servitude  imposed  upon  the  land 
which  is  visible  to  the  eye,  and  which  affects  not  the  title  but  the 
physical  condition  of  the  property,  a  different  rule  prevails.  Thus 
it  was  held  that  where  the  owner  had  covenanted  to  convey  certain 
lots  free  from  all  incumbrances,  a  public  road  which  occupied  a 
portion  of  the  lots  was  not  an  incumbrance  within  the  meaning 
of  the  covenant.20  This  is  not  because  of  any  right  acquired  by  the 
public,  but  by  reason  of  the  fact  that  the  road,  although  admittedly 
an  incumbrance,  and  possibly  an  injury  to  the  premises,  was  there 
when  the  purchaser  bought,  and  he  is  presumed  to  have  had  knowl- 
edge of  it.  In  such  and  similar  cases  there  is  the  further  presump- 
tion that  if  the  incumbrance  is  really  an  injury,  such  injury  was  in 
the  contemplation  of  the  parties  and  that  the  price  was  regulated 
accordingly. 

The  rule  that  a  purchaser,  with  notice  of  an  easement  affecting 
the  premises,  cannot  complain  thereof  as  a  breach  of  the  covenant 
against  incumbrances  unquestionably  applies  where  the  easement 
is  obviously  an  appurtenance  or  incident  of  the  estate.  Nothing 
which  constitutes  part  of  an  estate,  or  which,  as  between  the  parties, 
is  to  be  regarded  as  an  incident  to  which  the  estate  is  subject,  can 
be  considered  an  incumbrance.21  And  where  the  owner  of  two 
tenements  sells  one  of  them,  the  purchaser  takes  the  portion  sold 
with  and  subject  to  all  the  benefits  and  burdens  which  appear  at 
the  time  of  the  sale  to  belong  to  it,  as  between  it  and  the  property 
which  the  owner  retains.22 

It  is  suggested,  with  diffidence,  that  it  is  immaterial,  so  far  as  the 
mere  question  of  damages  is  concerned,  whether  a  highway  or  other 

*•  Patterson  v.  Arthur,  9  Watts   (Pa.),  152. 

"Dunklee  v.  Wilton  R.  Co.,  4  Fost.  (N.  H.)  489.  In  this  case  the  plaintiff 
conveyed  to  the  defendants  a  right  of  way  for  their  railroad,  which  inter- 
sected a  mill  race  owned  by  the  plaintiff.  The  action  was  to  recover  dam- 
ages from  the  defendant  for  building  a  culvert  at  a  point  which  caused  a 
deflection  and  less  ready  discharge  of  the  waters  of  the  race.  The  right  to 
have  the  water  flow  freely  under  or  across  the  defendant's  right  of  way  was 
held  no  breach  of  a  covenant  against  incumbrances  in  the  plaintiff's  deed, 
and,  therefore,  that  he  was  not  estopped  by  such  covenant  to  maintain  the 
action. 

**  Janes  v.  Jenkins,  34  Md.  1 ;  6  Am.  Rep.  300.  Seymour  v.  Lewis.  2  Beas. 
(N.  J.)  439.  Harwood  v.  Benton,  32  Vt.  724. 


310  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

easement  of  which  the  purchaser  had  notice,  shall  be  considered  a 
technical  incumbrance.  If  he  bought,  knowing  that  the  easement 
was  there,  it  will  be  presumed  that  the  price  he  agreed  to  pay  was 
the  value  of  the  land  after  allowing  for  the  loss,  inconvenience  or 
injury  occasioned  by  the  easement.  On  the  other  hand,  if  it  ap- 
pear that  the  easement  is  a  benefit  instead  of  a  burden  to  the  prem- 
ises, there  is  no  loss  or  injury  to  the  grantee.23  In  either  case  it 
would  seem  that  he  could  recover  only  nominal  damages  for  the 
breach.  It  may  even  be  doubted  whether  the  easement,  when  it  is 
a  benefit,  could  be  regarded  as  a  technical  breach  of  the  covenant 
so  as  to  entitle  the  plaintiff  to  a  judgment  for  costs.  If  the  grantee 
elect,  for  a  number  of  years,  to  treat  the  easement  as  a  benefit, 
he  will  be  estopped  to  set  it  up  as  a  breach  of  the  covenant." 

§  128.  ASSIGNABIUTY  OF  THE  COVENANT  AGAINST  ENCUM- 
BRANCES. The  covenant  against  incumbrances,  like  the  covenant 
of  seisin,  has  been  generally  held  in  the  American  States  to  be  an 
agreement  as  to  the  present  state  of  the  title,  and  to  be  broken  ai 
soon  as  made,  if,  at  the  time  of  the  covenant,  there  be  an  incum- 
brance on  the  premises,  and  that,  consequently,  all  rights  of  actiom 
for  breach  of  contract  being  incapable  of  assignment  at  common 
law  and  by  the  statute  32  Hen.  VIII,  c.  24,  a  grantee  of  the  cove- 
nantee,  or  one  claiming  under  him,  could  bring  no  action  at  law  in 
his  own  name  for  the  breach;  in  other  words,  that  the  covenant 

,  BHymes  v.  Esty,  133  N.  Y.  342;  31  N.  E.  Rep.  105.  Mr.  Rawle  concludes 
that  an  easement  beneficial  to  the  premises  cannot  be  an  incumbrance,  and, 

,  therefore,  cannot  be  a  breach,  technical  or  substantial,  of  the  covenant  against 
incumbrances.  Also,  that  parol  evidence  may  be  received  as  to  the  nature  of 

i  the  alleged  incumbrance,  and  that  the  question  whether  the  same  be  or  be  not 
in  fact  an  incumbrance,  is  not  a  mere  abstract  question  of  law,  but  a  ques- 

i  tion  of  fact  to  be  determined  by  the  jury  upon  consideration  of  all  the  sur- 
rounding circumstances,  such  as  the  advantages  or  disadvantages  accruing 
to  the  premises  from  the  easement,  notice  to  the  purchaser,  the  price  agreed 
to  be  paid,  etc.  (Covenants  for  Title  [5th  ed.],  §§  76,  85).  But  see  Eddy  T. 
Chace,  140  Mass.  471;  5  N.  E.  Rep.  306,  where  it  was  said  that  the  construc- 
tion of  a  deed,  and  the  operation  and  extent  of  the  covenants  therein  con- 
tained is  for  the  court  and  not  for  the  jury,  and  that  it  cannot  be  left  to  the 
latter  to  say  whether,  upon  the  evidence,  a  covenant  against  certain  incum- 
brances was  intended  by  the  deed. 

"Ladue  v.  Cooper,  67  N.  Y.  Supp.  319;  32  Misc.  Rep.  544. 


COVENANT    AGAINST    INCUMBRANCES.  311 

against  incumbrances  does  not  run  with  the  land.25  This  rule  does 
not  prevail,  however,  in  many  of  the  States,  their  courts  holding 
that  if  the  loss  resulting  from  a  breach  of  the  covenant  fall  upon 
the  subsequent  grantee,  he  will  have  a  right  of  action  against  the 
covenantor,  upon  the  ground  that  the  covenant  is  prospective  in  its 
operation,  and  intended  for  the  security  of  the  title  and  the  in- 
demnity of  him  into  whose  hands  the  land  may  pass.26  A  distinc- 

18  See,  generally,  the  cases  cited  to  the  proposition  that  a  covenant  of  seisin 
<loes  not  run  with  the  land, , ante,  §  111.  See,  also,  Lawrence  v.  Montgomery, 
37  Cal.  183.  Woodward  v.  Brown,  119  Cal.  283;  51  Pac.  Rep.  2,  542.  Mc- 
Pike  v.  Heaton,  131  Cal.  109;  63  Pac.  Rep.  179.  Heath  v.  Whidden,  24  Me. 
383.  Mygatt  v.  Coe,  124  N.  Y.  212;  26  N.  E.  Rep.  611.  Stewart  v.  Drake, 
«  N.  J.  L.  139;  Garrison  v.  Sandford,  12  N.  J.  L.  2G1'.  Blondeau  v.  Sheridan, 
81  Mo.  545.  Osborne  v.  Atkins,  6  Grey  (Mass.),  423;  Smith  v.  Richards, 
(Mass.)  18  N.  E.  Rep.  1132.  Guerin  v.  Smith,  62  Mich.  369;  38  N.  W.  Rep. 
906.  Smith  v.  Jefts,  44  N.  H.  482.  Fuller  v.  Jillette,  9  Biss.  (U.  S.)  296, 
obiter.  Sears  v.  Broady,  66  Neb.  207;  92  N.  W.  Rep.  214;  Waters  v.  Bagley, 
(Neb.)  92  N.  W.  Rep.  637.  Brass  v.  Vandecar,  (Neb.)  96  N.  W.  Rep.  1035. 
In  Pearson  v.  Ford,  1  Kan.  App.  580;  42  Pac.  257,  the  court  declined  to  pass 
upon  the  question  whether  a  covenant  against  incumbrances  ran  with  the 
land,  but  held  that  a  general  warranty  deed  executed  pending  proceedings  to 
foreclose  a  mortgage  on  the  land,  did  not  give  the  grantee  the  right  to  main- 
tain an  action  on  an  agreement  in  a  deed  by  his  grantee  to  a  third  party,  con- 
veying other  land  by  which  such  third  party  undertook  to  discharge  the 
mortgage  in  question  as  a  part  of  the  consideration  for  his  deed. 

"See  cases  cited  ante,  §  112,  to  proposition  that  covenant  of  seisin  runs 
with  the  land.  See,  also,  Cole  v.  Kimball,  52  Vt.  639.  Walker  v.  Deaver,  5 
Mo.  App.  139;  Alexander  v.  Schreiber,  13  Mo.  271;  Winningham  v.  Pennock, 
36  Mo.  App.  688.  Sage  v.  Jones,  47  Ind.  122.  This  case  holds  also  that  the 
grantor  cannot  at  the  time  of  conveyance  reserve,  by  parol,  the  right  to  re- 
cover for  a  breach  of  the  incumbrance.  Whitten  v.  Krick,  31  Ind.  App.  577; 
68  N.  E.  Rep.  694.  Tucker  v.  McArthur,  103  Ga.  409;  30  S.  E.  Rep.  283. 
Taylor  v.  Lane,  18  Tex.  Civ.  App.  545;  45  S.  W.  Rep.  317.  Pillsbury  v. 
Mitchell,  5  Wis.  17.  Hawthorne  v.  City  Bank,  34  Minn.  382.  This  rule  seems 
also  to  have  been  recognized  in  Virginia.  Wash.  City  Savings  Bank  v. 
Thornton,  83  Va.  157 ;  2  S.  E.  Rep.  193,  dictum,  citing  Dickinson  v.  Hoomes, 
8  Grat.  (Va.)  353;  Sheffey  v.  Gardner,  79  Va.  313.  It  is  settled  in  New  York 
that  a  covenant  against  incumbrances  runs  with  the  land,  and  that  a  remote 
grantee  may  sue  on  the  original  covenant.  Geiszler  v.  De  Graaf,  166  N.  Y. 
339;  59  N.  E.  Rep.  993;  82  Am.  St.  Rep.  659;  .Mandigo  v.  Conway,  90  N.  Y. 
Supp.  324;  45  Misc.  389.  In  Clarke  v.  Priest,  47  N.  Y.  Supp.  489;  21 
App.  Div.  174,  the  rule  was  thus  stated:  If  the  covenantee  has  on  an  alien- 
ation of  the  property  by  him,  either  rendered  himself  liable  to  his  grantee  by 
a  covenant  against  incumbrances,  or,  by  his  conveyance,  estopped  himself 
from  asserting  title  to  the  incumbrance,  as  against  his  grantee,  should  he 
Afterward  acquire  it,  then  his  deed  should, be  held  to  operate  as  an  assign- 


312  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

tion  has  also  been  made  between  a  covenant  "  that  the  land  is  free 
from  incumbrances,"  and  one  that  the  covenantee  "  shall  quietly 
enjoy  the  same,  free  from  incumbrances"  it  being  considered  that 
in  this  form  the  covenant  is  prospective  and  runs  with  the  land.27 
As  a  general  rule  the  cases  which  decide  that  the  covenant  of 
seisin  does  not  run  with  the  land,  apply  the  same  rule  to  the  cove- 
nant against  incumbrances,  and  the  reader  is  referred  to  the  re- 
marks in  this  work  on  the  assignability  of  the  covenant  of  seisin, 
and  to  the  cases  there  cited,  as  being,  in  the  main,  applicable  to  the 
covenant  against  incumbrances.28  In  several  of  the  States,  how- 
ever, in  which  it  is  held  that  a  covenant  of  seisin  does  not  run  with 
the  land,  a  subsequent  grantee  of  the  land  has  been  permitted  to 
recover  for  a  breach  of  the  covenant  against  incumbrances.29 

The  rule  that  a  covenant  against  incumbrances  does  not  run  with, 
the  land,  is  comparatively  unimportant  where  the  deed  contains 

ment  to  his  grantee  of  his  right  of  action  against  his  grantor.  The  husband 
of  a  deceased  grantee,  not  being  a  party  to  the  deed  containing  a  covenant 
against  incumbrances,  nor  assignee  of  such  covenant,  cannot  maintain  an 
action  for  breach*  thereof,  though  he  joined  his  wife  in  a  deed  conveying  the 
premises  with  a  covenant  against  incumbrances.  Ladd  v.  Montgomery,  83 
Mo.  App.  355. 

"Rawle  Covts.  §§  70,  212.  In  Brisbane  v.  McCrady,  1  Nott.  &  McC.  (S. 
C.)  104,  it  was  held  that  a  covenant  that  the  land  was  free  from  incum- 
brances was  equivalent  to  a  covenant  that  the  grantee  should  quietly  enjoy 
the  premises  free  from  incumbrances,  and  being  thus  prospective  in  its  char- 
acter, would  pass  with  the  land  to  a  subsequent  grantee.  See,  also,  Jeter  v. 
Glenn,  9  Rich.  L.  (S.  C.)  376. 

"Ante,  §   112. 

"Richard  v.  Bent,  59  111.  38;  14  Am.  Rep.  1.  In  Ernst  v.  Parsons,  54  How. 
Pr.  (N.  Y. )  163,  it  was  said  that  in  redeeming  land,  which  had  been  conveyed 
with  warranty  against  incumbrances,  from  a  tax  sale,  a  remote  grantee  did 
that  which  it  was  the  covenantor's  duty  to  do,  and  that  so  long  as  the  tax  lien 
remained  unpaid  there  was  a  continuing  breach  of  the  covenant,  for  which 
the  remote  grantee  had  a  right  of  action.  The  rule  that  a  covenant  of  seisin 
is  broken  as  soon  as  made,  and,  being  a  chose  in  action,  cannot  run  with  the 
land,  is  perhaps  nowhere  more  firmly  established  than  in  the  State  of  Massa- 
chusetts. It  has  been  intimated  there,  however,  that  the  same  rule  would  not 
apply  in  the  case  of  a  breach  of  the  covenant  against  incumbrances.  In 
Sprague  v.  Baker,  17  Mass.  589,  it  was  said  by  WILDE,  J. :  "  There  was  a 
breach  of  the  covenant  (against  incumbrances),  it  is  true,  before  the  assign- 
ment; but  for  this  breach  the  covenantee  could  only  have  recovered  nominal 
damages.  The  actual  damages  accrued  after  assignment.  They  were  sus- 
tained by  the  assignee,  and  not  by  the  covenantee,  who  has  no  interest  in 


COVENANT    AGAINST    INCUMBEANCES.  313 

also  a  covenant  of  warranty,  which,  of  course,  must  always  be  the 
case  in  those  jurisdictions  in  which  by  statute  or  judicial  construc- 
tion, a  covenant  of  warranty  includes  a  covenant  against  incuni- 
brances.  The  covenantee  may  wait  until  he  is  actually  evicted  by 
enforcement  of  the  incumbrance,  or  he  may  suffer  a  constructive 
eviction  by  discharging  the  incumbrance  in  order  to  prevent  an 
actual  dipossession,  and  in  either  case  recover  for  breach  of  the 
warranty,  regardless  of  the  covenant  against  incumbrances.30  No 
damage,  as  a  general  rule,  flows  from  the  breach  of  the  covenant 
until  the  incumbrance  has  been  actually  or  constructively  enforced, 
and  when  that  occurs  the  covenant  of  warranty  is  broken  and  an 
action  for  damages  immediately  accrues  in  favor  of  the  person 
then  owning  the  premises.81 

Of  course  if  the  damage  from  a  breach  of  the  covenant  against 
incumbrances  accrue,  that  is,  if  the  incumbrance  be  enforced,  be- 

them,  except  what  arises  from  his  covenants  with  the  assignee.  But  suppose 
there  had  been  no  such  covenants,  or  suppose  the  covenantee  to  be  insolvent; 
then  unless  the  assignee  can  maintain  the  present  action  he  is  without  rem- 
edy. This  certainly  would  not  be  right ;  nor  do  I  think  that  such  is  the  law. 
It  seems  to  me  that,  if  the  present  case  required  a  decision  upon  that  point, 
we  might  be  well  warranted  in  saying  that  the  covenant  against  incum- 
brances, notwithstanding  the  breach,  passed  to  the  assignee,  so  as  to  entitle 
him  to  an  action  for  any  damages  he  might  sustain  after  the  assignment, 
because  the  breach  continued  and  the  ground  of  damages  has  been  materially 
enlarged  since  that  time,  so  that  the  assignee's  title  does  not  depend  upon  the 
assignment  of  a  mere  chose  in  action.  He  is  principally  interested  in  the 
covenant;  that  those  covenants  run  with  the  land  in  which  the  owner  is  solely 
or  principally  interested,  and  which  are  necessary  for  the  maintenance  of  his 
rights.  Covenant  lies  by  an  assignee  on  every  covenant  which  concerns  the 
land.  Com.  Dig.  B.  S."  The  foregoing  remarks  would  seem  to  apply  with 
equal  force  in  a  case  in  which  actual  damages  from  a  breach  of  the  covenant 
of  seisin  have  been  sustained  by  the  assignee.  In  Stinson  v.  Sumner,  9 
Mass.  143;  6  Am.  Dec.  49,  a  remote  grantee  was  permitted  to  recover  on  a 
covenant  against  incumbrances.  The  objection  that  the  right  of  action  did 
not  pass  to  him  was  not  made.  Later  decisions  in  Massachusetts  have  dis- 
regarded those  cases,  and  the  rule  that  the  covenant  against  incumbrances 
does  not  run  with  the  land  may  be  considered  to  be  settled  in  that  State. 
Osborne  v.  Atkins,  6  Gray  (Mass.),  423;  Whitney  v.  Dinsmore,  6  Cush. 
(Mass.)  128. 

"Worley  v.  Hineman,  (Ind.)  33  N.  E.  Rep.  260. 

"Tufts  v.  Adams,  8  Pick.  (Mass.)  549;  Thayer  v.  Clemence,  22  Pick. 
(Mass.)  490.  Lloyd  v.  Quimby,  5  Ohio  St.  262. 


314  MARKETABLE    TITLE    TO    REAL    ESTATE. 

fore  the  land  passes  from  the  covenantee,  the  right  to  recover  for 
the  damages  thence  ensuing  would  not  pass  to  a  subsequent  grantee 
or  to  the  heir  of  the  covenantee.12 

The  provision  of  the  Code,  that  every  action  shall  be  brought  by 
the  real  party  in  interest,  has  been  construed  to  give  to  a  grantee  of 
the  covenantee  the  right  to  maintain  an  action  in  his  own  name  for 
a  breach  of  the  covenant  against  incumbrances.33 

In  the  State  of  New  York,  where  it  is  held  that  the  covenant 
against  incumbrances  runs  with  the  land,  it  is  also  held  that  a 
subsequent  conveyance  "  subject  to  "  an  incumbrance  constituting 
a  breach  of  the  covenant  in  the  original  conveyance,  breaks  the 
continuity  of  the  covenant  and  extinguishes  its  benefits,  so  that 
a  subsequent  grantee  who  acquires  title  under  a  deed  containing 
such  a  covenant,  cannot  recover  upon  it  as  against  the  original 
grantor.14 

§  129.  MEAST7BE  OF  DAMAGES.  General  Boles.  Incumbrances 
are  of  two  kinds,  namely:  (1)  Pecuniary,  or  those  which  the 
debtor,  his  creditors  and  purchasers  from  him,  have  a  right  to  re- 
move after  maturity  by  payment  of  the  debt  which  the  incumbrance 
secures,  such  as  a  mortgage,  deed  of  trust,  judgment  or  other  lien.15 
(2)  Permanent,  or  those  which  cannot  be  removed  without  the 
consent  of  him  who  has  the  right,  such  as  an  outstanding  life 
estate,  an  unexpired  lease,  a  right  of  way,  easement,  building 
restriction  or  the  like.  If  the  breach  of  the  covenant  against 
incumbrances  consist  in  the  existence  of  a  pecuniary  incumbrance 
upon  the  estate  the  covenantee  can  recover  no  more  than  nominal 

"Frink  v.  Bellis,  33  Ind.  135;  5  Am.  Rep.  193.  2  Sugd.  Vend.  (8th  Am. 
ed.)  577  (237). 

•Andrews  v.  Appel,  22  Hun  (N.  Y.),  429.  This  was  an  action  on  a  cove- 
nant against  incumbrances  brought,  by  the  last  grantee,  after  several  meane 
conveyances.  The  plaintiff  had  been  compelled  to  redeem  the  land  from  a  tax 
sale  under  tax  liens  existing  at  the  time  the  original  conveyance  was  made. 
The  court  held  that  the  plaintiff,  having  suffered  the  loss  occasioned  by  the 
incumbrance,  was  the  real  party  in  interest  and  acquired  the  right  to  enforce 
the  covenant  by  an  assignment  implied  in  equity  from  the  original,  and  each 
successive  conveyance.  2  Story  Eq.  §  1040. 

"Geiazler  v.  De  Graaf,  166  X.  Y.  329;  59  N.  E.  Rep.  993. 

*  As  to  the  right  of  a  purchaser  or  creditor  to  pay  off  an  incumbrance  and 
be  subrogated  to  the  rights  of  the  incumbrancer,  see  Sheldon  on  Subrogation, 
i  29  et  *eq. 


COVENANT    AGAINST    INCUMBEANCES.  315 

damages  if  he  has  not  been  disturbed  in  the  enjoyment  of  the 
estate  or  has  paid  nothing  or  sustained  no  loss  on  account  of  the 
incumbrance.36  But  he  will  be  entitled  to  nominal  damages  though 

"Sedg.  Dam.  p.  953;  Rawle  Covt.  (5th  ed.)  §  188;  3  Washb.  Real  Prop. 
(3d  ed.)  495.  Delavergne  v.  Norris,  7  Johns.  (N.  Y.)  359;  5  Am.  Dec.  281, 
leading  case;  Stanard  v.  Eldridge,  16  Johns.  (N.  Y.)  254;  Andrews  v.  Appel, 
22  Hun  (N.  Y.),  474;  Reading  v.  Gray,  37  N.  Y.  Super.  Ct.  79,  distinguish- 
ing Rector  v.  Higgins,  48  N.  Y.  532;  McGuckin  v.  Milbank,  83  Hun  (N.  Y.), 
473;  31  N.  Y.  Supp.  1049.  Prescott  v.  Trueman,  4  Mass.  627;  3  Am.  Rep. 
249;  Wyman  v.  Ballard,  12  Mass.  304;  Brooks  v.  Moody,  20  Pick.  (Mass.) 
474;  Harrington  v.  Murphy,  109  Mass.  299.  Bean  v.  Mayo,  5  Gr.  (Me.)  94; 
Randell  v.  Mallett,  14  Me.  51;  Clark  v.  Perry,  30  Me.  148.  -  Richardson  v. 
Dorr,  5  Vt.  9.  Briggs  v.  Morse,  42  Conn.  258.  Brown  v.  Brodhead,  3  Whart. 
(Pa.)  88.  This  was  an  action  on  a  title-bond  to  indemnify  the  purchaser 
against  incumbrances.  Pomeroy  v.  Burnett,  8  Bl.  (Ind.)  142;  Reasoner  v. 
Edmundson,  5  Ind.  393;  Black  v.  Coan,  48  Ind.  385;  Bundy  v.  Ridenour,  63 
Ind.  406.  Willets  v.  Burgess,  34  111.  494.  Lane  v.  Richardson,  (N.  C.)  10  S.  E. 
Rep.  189.  Wilcox  v..  Musche,  39  Mich  101;  Norton  v.  Colgrove,  41  Mich.  544. 
Egan  v.  Yearman,  (Tenn.)  46  S.  W.  Rep.  1012.  Eaton  v.  Lyman,  30 
Wis.  41,  DIXON,  C.  J.,  dissenting,  held  the  covenantee  could  not  even 
recover  nominal  damages.  If  the  grantee,  selling  the  premises,  receive,  in 
consequence  of  the  incumbrance,  a  less  price  than  he  would  have  received  if 
the  incumbrance  had  not  existed,  he  will  be  entitled  to  recover  as  damages 
the  difference  between  what  he  actually  received  and  what  he  would  have 
received  if  there  had  been  no  incumbrance.  McGuckin  v.  Mill  bank,  152  N.  Y. 
297 ;  46  N.  E.  Rep.  490. 

•  It  is  easy  to  see  that  a  pecuniary  incumbrance  upon  the  premises  may  be  a 
source  of  loss  or  injury  to  the  covenantee  in  some  way  other  than  the  mere 
removal  of  the  incumbrance,  and  that  a  breach  of  the  covenant  of  seisin 
may  result  in  serious  loss  to  the  covenantee,  though  the  adverse  title  never 
be  asserted.  Thus,  it  frequently  happens  that  negotiations  for  the  sale  of 
the  property  are  broken  off  upon  the  discovery  of  an  incumbrance  or  a  de- 
fect in  the  title,  the  purchaser  preferring  to  abandon  his  bargain  rather  than 
await  the  removal  of  the  objection.  In  such  a  case  the  incumbrance,  or  the 
defect,  is  the  immediate  and  proximate  cause  of  the  loss  of  the  sale.  The 
injury  need  not  consist  in  the  loss  of  a  bargain,  or  the  difference  between 
the  consideration  money,  paid  by  the  covenantee,  and  that  which  he  was  to 
receive  from  the  prospective  purchaser;  the  right  of  action,  if  any  exist, 
would  be  for  the  loss  of  the  opportunity  to  sell.  This  question  was  raised 
in  McCarty  v.  Leggett,  3  Hill  '(N.  Y.),  134,  but  was  not  decided,  the  judg- 
ment of  the  court  below  having  been  reversed,  and  the  case  sent  back  on 
other  grounds.  A  practical  inconvenience,  however,  resulting  from  a  re- 
covery of  damages  in  such  a  case  would  be  that  the  recovery  would  satisfy 
the  breach,  it  is  apprehended,  and  the  judgment  might  be  pleaded  in  bar  of 
nny  further  action  in  case  the  incumbrance  should  be  enforced,  or  the  cove- 
nantee evicted.  Rawle  Covt.  (5th  ed.)  §  189.  If,  however,  he  should  remove 
the  incumbrance,  there  soeirs  to  be  no  reason  why  the  covenantee  should  not, 


316  MARKETABLE    TITLE    TO    REAL,    ESTATE. 

the  incumbrance  was  paid  off  before  his  action  was  commenced.37 
In  Massachusetts  it  has  been  held  that  in  case  of  a  breach  of  this 
covenant,  resulting  from  an  outstanding  interest  in  the  premises  in 
favor  of  a  tenant  in  common,  the  covenantee  may  recover  substan- 
tial damages  though  the  incumbrance  has  never  been  enforced  by 
proceedings  for  partition.38 

The  mere  fact  that  the  property  has  depreciated  in  value  during 
the  period  intervening  between  the  execution  of  the  deed  and  the 
time  when  incumbrances  on  the  property  became  barred  by  the 
statute  of  limitations,  does  not  entitle  the  covenantee  to  damages, 
where  he  has  paid  nothing  on  account  of  the  incumbrance,  and  has 
never  been  disturbed  in  the  possession  and  enjoyment  of  the 
premises.89 

In  a  case  in  which  the  deed  contained  a  covenant  to  "  pay  and 
satisfy  "  on  demand,  a  particular  judgment  against  the  grantor, 
which  was  a  lien  on  the  premises  conveyed,  it  was  held  that  the 
covenantee  was  entitled  to  recover  the  amount  of  the  judgment 
as  damages  for  a  breach  of  the  covenant,  though  he  had  neither 
paid,  nor  had  been  called  upon  to  pay,  anything  on  that  account. 
The  distinction  made  by  the  court  was  that  a  covenant  to  "  pay 
and  satisfy "  was  more  onerous  than  a  mere  covenant  of 
indemnity.40 

It  seems  that  a  judgment  for  nominal  damages  for  a  breach  of 
the  covenant  against  incumbrances  will  operate  as  a  bar  to  any 
future  recovery  upon  the  covenant,  after  actual  damages  shall  have 

in  addition  to  the  amount  paid  for  that  purpose,  recover  damages  for  what- 
ever actual  injury  he  may  have  sustained  from  its  existence,  provided  the 
total  recovery  do  not  exceed  the  consideration  money  and  interest.  In  Har- 
rington v.  Murphy,  109  Mass.  299,  it  was  held  that  the  covenantee  could  not 
recover  as  damages  a  sum  paid  by  him  to  an  auctioneer  for  selling  the  land 
to  a  person  who  refused  to  complete  the  purchase  on  discovering  an  incum- 
brance. 

"Smith  v.  Jefts,  44  N.  H.  482.  In  Harwood  v.  Lee,  (Iowa)  52  N.  W.  Rep. 
521,  the  court  refused  to  reverse  a  judgment  merely  for  failure  to  give  nom- 
inal damages  for  a  breach  of  the  covenant  against  incumbrances. 

u  Comings  v.  Little,  24  Pick.   ( Mass. )   266. 

"Egan  v.  Yeaman,  (Tenn.)  46  S./W.  Rep.  1012. 

"Bristor  v.  McBean,  37  N.  Y.  Supp.  18;  1  App.  Div.  217. 


COVENANT   AGAINST   INCUMBEANCES.  317 

been  sustained.41  Practically  the  rule  is  of  no  great  importance, 
inasmuch  as  an  action  upon  the  covenant  will  seldom  be  brought 
until  the  incumbrance  has  been  actually  or  constructively  enforced, 
and  the  covenantee  has  sustained  actual  damages,  in  which  case, 
as  we  have  seen,  the  plaintiff  will  be  entitled  to  substantial  damages. 
§  130.  Measure  of  damages  where  covenantee  discharges 
incumbrance.  The  covenantee  may,  of  course,  pay  off  an  incum- 
brance on  the  premises,  and  thereby  become  entitled  to  substantial 
damages  for  breach  of  the  covenant,  without  waiting  to  be  evicted,4* 
provided  the  grantor  has  refused  to  remove  the  incumbrance  after 
notification  and  request.43  But  in  such  case  he  can  recover  as  dam- 
ages no  more  than  the  amount  actually  and  fairly  paid  to  discharge 
the  incumbrance,44  together  with  compensation  for  his  trouble  and 

"Rawle  Covts.  for  Title  (5th  ed.),  §§  176,  189.  Taylor  v.  Heitz,  87  Mo. 
660.  In  Eaton  v.  Lyman,  30  Wis.  41,  it  was  held  that  the  plaintiff  was  en- 
titled to  nominal  damages,  though  he  had  not  removed  the  incumbrance,  but 
the  court  declined  to  say  whether  a  second  action  could  be  maintained  and 
damages  recovered  if  the  incumbrance  should  be  enforced  and  actual  damages 
sustained. 

"Hall  v.  Dean,  13  Johns.  (N.  Y.)  105.  Rainey  v.  Hines,  121  N.  C.  318; 
28  S.  E.  Rep.  410. 

"Warren  v.  Stoddart,  (Idaho)  59  Pac.  Rep.  540.  Greene  v.  Tallman,  20 
N.  Y.  191;  75  Am.  Dec.  384.  Here  the  incumbrance  ?omplained  of  was  a 
species  of  quit  rent  due  the  city  of  New  York.  The  court,  by  STBONG,  J., 
said,  that  in  order  to  avail  himself  of  the  discharge  of  the  incumbrance  the 
covenantee  "  would  be  bound  to  prove  either  that  what  had  been  paid  by  him 
was  actually  due,  or  that  he  had  given  notice  to  his  vendor  requiring  that 
such  vendor  should  pay  off  the  incumbrance  within  a  limited  time,  or  that, 
otherwise,  the  purchaser  would  pay  a  specified  amount.  Some  of  the  authori- 
ties lay  down  the  rule  that  the  purchaser  may  set  off  or  recover  the  amount 
paid,  without  any  qualification,  but  it  seems  to  us  that  a  vendor  who  has 
been  innocent  of  any  fraud  should  have  an  opportunity  to  set  himself  right, 
before  he  should  be  obliged  to  pay,  or  allow  more  than  the  amount  actually 
due.  It  is,  I  think,  well  settled  that  where  the  incumbrance  has  not  been 
paid  off  by  the  purchaser  of  the  land,  and  he  has  remained  in  quiet  and 
peaceable  possession  of  the  premises,  he  cannot  have  relief  against  his  con- 
tract to  pay  the  purchase  money,  or  any  part  of  it,  on  the  ground  of  defect 
of  title.  The  reason  is,  that  the  incumbrance  may  not,  if  let  alone,  ever  be 
asserted  against  the  purchaser,  as  it  may  be  paid  off  or  satisfied  in  some 
other  -way." 

"Washb.  Real  Prop.  (4th  ed.)  495;  Sedg.  Dam.  198;  Rawle  Covt.  (5th  ed.) 
§  192;  4  Kent.  Com.  (llth  ed.)  563.  Delavergne  v.  Norris,  7  Johns.  (N.  Y.) 
358;  5  Am.  Dec.  281;  Braman  v.  Bingham,  26  N.  Y.  483,  494.  McGuckin  v, 
Millbank,  31  N.  Y.  Supp.  1049;  83  Hun,  473.  Hastings  v.  Hastings,  58  N.  Y. 


318  MARKETABLE    TITLE    TO    REAL   ESTATE. 

expenses  incurred  in  that  behalf.45  He  will  be  entitled  to  that 
amount  as  damages  even  though  paid  after  the  institution  of  his 
action  on  the  covenant,46  or  before  the  incumbrance  was  due.47  But, 
it  seems,  that  in  order  to  recover  fees  paid  counsel  in  defending  a 
suit  to  enforce  the  incumbrance,  he  must  have  given  the  covenantor 
notice  to  defend  the  suit.48  The  covenantee  is  not  necessarily 
entitled  to  recover  as  damages  the  whole  sum  paid  by  him  to 
remove  an  incumbrance  on  the  premises,  even  though  such  sum 
do  not  exceed  the  purchase  price  of  the  estate.  He  is  entitled  to 
recover  only  what  he  fairly  and  reasonably  paid  for  that  purpose.49 
Of  course,  if  it  should  appear  that  the  incumbrance  removed  was 

Supp.  416;  27  Misc.  244.  Seventy-third  St.  Bldg.  Co.  v.  Jencks,  46  N,  Y. 
Supp.  2;  9  App.  Div.  314.  Prescott  v.  Trueman,  4  Mass.  627;  3  Am.  Dec. 
249;  Smith  v.  Carney,  127  Mass.  179;  Coburn  v.  Litchfield,  132  Mass.  449. 
Richmond  v.  Ames,  164  Mass.  467;  41  N.  E.  Rep.  671.  Davis  v.  Lyman,  6 
Conn.  255,  obiter.  Cole  v.  Kimball,  52  Vt.  639 ;  Downer  v.  Smith,  38  Vt.  464. 
Willson  v.  Willson,  5  Fost.  (N.  H.)  229;  57  Am.  Dec.  320.  Reed  v.  Pierce, 
36  Me.  455;  58  Am.  Dec.  761.  Anderson  v.  Knox,  20  Ala.  156.  Amos  v. 
Cosby,  74  Ga.  793.  Schumann  v.  Knoebel,  27  111.  175;  McDowell  v.  Milroy, 
69  111.  498.  Rinehart  v.  Rinehart,  91  Ind.  89.  Edington  v.  Nix  (49  Mo.  134; 
Kellogg  v.  Malin,  62  Mo.  429;  11  Am.  Rep.  426.  Guthrie  v.  Russell,  4(5 
Iowa,  269;  26  Am.  Rep.  135.  Pillsbury  v.  Mitchell,  5  Wis.  17.  Pearsons  v. 
Ford,  1  Kan.  App.  580 ;  42  Pac.  Rep.  257.  Dahle  v.  Stakke,  12  N.  Dak.  325 ; 
96  N.  W.  Rep.  353.  Where  the  covenantee  discharged  a  mortgage  on  the 
premises  executed  to  secure  a  debt,  and  to  indemnify  the  mortgagee  against 
certain  liabilities,  but  paid  nothing  on  account  of  the  liabilities  in  question, 
it  was  held  that  he  was  only  entitled  to  recover,  as  damages,  the  amount  he 
had  actually  paid  out.  Comings  v.  Little,  24  Pick.  (Mass.)  266.  The  grantee 
cannot  recover  a  sum  paid  by  him  to  a  mortgagor  for  release  of  his  right  to 
redeem,  after  that  right  had  become  barred  by  the  Statute  of  Limitations. 
McMichael  v.  Russell,  74  N.  Y.  Supp.  212;  68  App.  Div.  104. 

"Willson  v.  Willson,  5  Fost.  (N.  H.)  229;  57  Am.  Dec.  320.  Lost  time, 
legal  expenses  and  car  fares  incurred  in  removing  from  the  record  an  appar- 
ent lien,  which  the  covenantor  had  discharged,  are  not  within  a  statute  which 
provides  that  a  grantee  may  recover  for  all  damages  sustained  in  removing 
an  incumbrance  on  the  premises,  when  there  is  a  covenant  against  incum- 
brances.  Bradshaw  v.  Crosby,  (Mass.)  24  N.  E.  Rep.  47. 

"Brooks  v.  Moody,  20  Pick.  (Mass.)  475.  Kelly  v.  Lowe,  18  Me.  244. 
Mosely  v.  Hunter,  15  Mo.  322. 

47  Snyder  v.  Lane,  10  Ind.  424. 

*•  Richmond  v.  Ames,  164  Mass.  467 ;  41  N.  E.  Rep.  671. 

4*2  Devlin  on  Deeds,  §  919.  Gilbert  v.  Rushmer,  49  Kans.  632;  31  Pac. 
Rep.  123.  Anderson  v.  Knox,  20  Ala.  156.  Guthrie  v.  Russell,  46  Iowa,  269; 
26  Am.  Rep.  125. 


COVENANT   AGAINST   INCUMBBANCES.  319 

the  first  lien  on  the  premises,  and  could  have  been  satisfied  in  full 
-if  enforced,  and  the  covenantee  had  paid  the  full  face  value  of 
the  incumbrance,  it  is  apprehended  that  such  payment  would  be 
deemed  fair  and  reasonable,  for  it  is  to  be  presumed  that  no  cred- 
itor would  part  with  a  solvent  security  for  less  than  its  face  value. 
But  in  any  case  in  which  it  might  appear  that  the  incumbrance, 
cither  because  a  junior  lien50  or  because  the  premises  had  decreased 
in  value,  or  for  any  other  reason,  was  not  worth  the  sum  paid  to 
remove  it,  the  grantee  must  show  that  the  sum  so  paid  was  the 
fair  and  reasonable  value  of  the  incumbrance.  He  will  also  have 
the  burden  of  showing  that  the  incumbrance  was  valid  and  en- 
forcible  against  the  premises.61  If  the  covenantee  buys  in  an 
incumbrance  he  must  extinguish  it  by  foreclosure  or  otherwise 
before  he  will  be  permitted  to  recover  as  for  a  breach  of  covenant 
against  incumbrances.  The  reason  is  that  if  he  were  permitted 
to  recover  substantial  damages  without  extinguishing  the  incum- 
brance he  might  be  in  a  position  to  perpetrate  a  fraud  upon  the 
covenantor  by  transferring  his  notes  secured  by  the  incumbrance 
to  innocent  purchasers  for  value  before  maturity.52 

The  covenantee  cannot  recover  a  sum  paid  by  him  to  extinguish 
an  incumbrance  on  the  premises  if  the  right  to  enforce  the  incum- 
brance was  barred  by  the  statute  .of  limitations  at  the  time  of 
the  payment.53 

In  Massachusetts,  as  has  already  been  seen,  if  the  covenantee 
be  evicted  by  the  enforcement  of  an  incumbrance,  but  has  a  right 
to  redeem  the  premises,  the  measure  of  his  damages  will  be  the 
amount  he  will  be  obliged  to  pay  for  the  purpose  of  redemption.6* 
This  rule  seems  eminently  fair  and  reasonable,  since  it  prevents 
the  covenantee  from  recovering  the  consideration  money  and  in- 
terest from  the  covenantor,  and  then  regaining  the  estate  by 

10  As  in  Gilbert  v.  Rushmer,  49  Kans.  632;  31  Pac.  Rep.  123. 

"Robinson  v.  Bierce,  102  Tenn.  428;  52  S.  W.  Rep.  992;  47  L.  R.  A.  275. 

"Harwood  v.  Lee,   (Iowa)   52  N.  W.  Rep.  521. 

"McMichael  v.  Russell,  74  N.  Y.  Supp.  212;  68  App.  Div.  104. 

"  Ante,  this  section.  The  rule  was  so  stated  in  an  early  edition  of  Mr. 
Rawle's  Covenant  for  Title,  but  in  the  last  edition  of  that  valuable  treatise 
(5th  ed.,  §  182)  it  has  fallen  a  sacrifice  to  the  author's  theory  that  the  cove- 
nantee cannot  be  deprived  of  his  right  to  damages  by  the  subsequent  acquisi- 
tion of  a  perfected  title  to  the  estate. 


320  MARKETABLE    TITLE    TO    REAL    ESTATE. 

redeeming  it  with  a  smaller  sum.  The  earlier  Massachusetts  cases 
hold  that  in  case  of  eviction  under  an  incumbrance  the  measure 
of  damages  is  the  purchase  money  and  interest,55  and  there  are 
several  decisions  to  the  same  effect  in  other  States,56  but  it  does  not 
in  them  appear  that  the  covenantee  had  a  right  to  redeem,  or  that 
the  limitation  of  his  damages  to  the  redemption  money  was  de- 
manded by  the  defendant.  No  duty,  however,  devolves  upon  the 
covenantee  to  discharge  the  incumbrance  before  it  is  enforced,57 
or  to  redeem  the  premises  after  enforcement,58  and  his  fail- 
ure to  redeem,  by  reason  of  which  the  title  of  the  purchaser 
under  the  incumbrance  becomes  absolute,  will  not  affect  his  right 
to  recover  the  consideration  money  and  interest  as  damages.  Nor 
will  the  measure  of  his  damages  be  affected  by  the  fact  that  he 
bought  with  notice  of  the  incumbrance.59  Evidence  of  the  pur- 
poses for  which  the  covenantee  bought  the  premises,  e.  g,f  as  a 
speculation,  is  inadmissible  for  the  purpose  of  aggravating  the 
damages,60  unless  it  can  be  shown  that  the  intention  with  which 
the  premises  were  bought  was  known  to  the  other  party  and  entered 
into  the  consideration  of  the  sale.61  Except  where  the  right  of 
redemption  exists,  the  measure  of  the  covenantee' s  damages  in  case 
of  eviction  is  the  same,  whether  the  action  be  for  a  breach  of  the 
covenant  of  warranty,  or  that  against  incumbrances.  In  neither 
case  can  the  plaintiff  recover  for  his  improvements  or  the  increased 
value  of  the  estate.62 

§  131.  Damages  cannot  exceed  purchase  money  and  interest. 
But  while  the  covenantee  is,  as  a  general  rule,  entitled  to 
recover  as  damages  the  amount  paid  by  him  to  remove  the  incum- 
brance, it  has  been  held  that  such  recovery  cannot  exceed 
the  purchase  price  of  the  land  with  interest.  This  limitation  of 

"Chapel  v.  Bull,  17  Mass.  213;  Jenkins  v.  Hopkins,  8  Pick.   (Mass.)    346. 

"Waldo  v.  Long,  7  Johns.  (N.  Y.)  173;  Bennet  v.  Jenkins,  13  Johns.  (N. 
Y.)  50.  Stewart  v.  Drake,  4  Halst.  (N.  J.)  139.  King  v.  Kerr,  5  Ohio,  155; 
22  Am.  Dec.  777. 

"Bank  v.  Clements,  16  Ind.  132. 

"  Sanders  v.  Wagner,  32  N.  J.  Eq.  506. 

MMohr  v.  Parmelee,  43  N.  Y.  S.  C.  320.  Snyder  v.  Xane,  10  Ind.  424;  Med- 
ler  v.  Hiatt,  8  Ind.  171. 

90  Batchelder  v.  Curtis,  3  Cush.  (Mass.)  204.   Greene  v.  Creighton,  7  R.  1. 10. 

"  Foster  v.  Foster,  62  N.  H.  46. 

"Stewart  v.  Drake,  4  Halst.  (N.  J.)    139. 


COVENANT    AGAINST    INCUMBBANCES.  321 

the  rule  has  been  recognized  in  most  of  the  States  in  which  it  has 
been  considered.63  In  Missouri,  however,  it  has  been  rejected.64 
In  Massachusetts  it  has  been  held  that  the  recovery  cannot  exceed 
the  value  of  the  land  at  the  time  the  incumbrance  was  removed,68 
and  this,  it  is  presumed,  would  be  the  rule  in  each  of  the  New 
England  States  in  which  the  covenantee  is  allowed  as  damages  the 
value  of  the  land  at  the  time  of  eviction.  The  rule  limiting  the 
damages  to  the  consideration  money  and  interest,  of  course  denies 
to  the  plaintiff  any  recovery  for  the  value  of  improvements  placed 
by  him  on  the  land.  Incumbrances  must  appear  of  record  in  order 
to  bind  the  property  at  the  time  of  purchase,  and  if  the  plaintiff 
improved  the  estate  without  examining  the  title,  the  loss  of  the 

"4  Kent.  Com.  (llth  ed.)  563;  Rawle  Covt.  §  193.  Dimmick  v.  Iiockwood, 
10  Wend.  (N.  Y.)  142;  Grant  v.  Tallman,  20  N.  Y.  191;  75  Am.  Dec.  384; 
Andrews  v.  Appel,  22  Hun  (N.  Y.),  429.  Boyd  v.  Whitfield,  19  Ark.  447; 
Collier  v.  Cowger,  52  Ark.  322;  12  S.  W.  Rep.  702.  Kelsey  v.  Remer,  43 
Conn.  129;  21  Am.  Rep.  638.  Foote  v.  Burnet,  10  Ohio,  333;  36  Am.  Dec.  90; 
Nyce  v.  Obertz,  17  Ohio,  77;  49  Am.  Dec.  444.  Eaton  v.  Lyman,  30  Wis.  41. 
Willetts  v.  Burgess,  34  111.  494,  obiter.  Kandler  v.  Sharp,  41  Iowa,  232,  has 
been  supposed  to  depart  from  the  rule  limiting  damages  for  breach  of  the 
covenant  against  incumbrances  to  the  purchase  money  and  interest.  Rawle 
Covt.  (5th  ed.)  275.  Guthrie  v.  Russell,  46  Iowa,  271;  26  Am.  Dec.  135.  It 
is  by  no  means  clear  that  such  was  the  intention  of  the  court.  The  opinion 
in  the  case,  however,  is  somewhat  obscure.  On  page  237  it  is  said  that  the 
grantees  had  a  right  to  the  benefit  of  their  purchases  and  not  simply  to  a 
return  of  their  money  and  interest.  And  in  the  next  sentence  the  apparently 
conflicting  statement  is  made  that  any  expenditure  the  grantee  might  be 
required  to  make  in  order  to  protect  his  title,  not  exceeding  the  purchase 
money  and  interest,  he  might  properly  make  and  demand  its  return  from  the 
grantor,  etc.  In  Hawthorne  v.  City  Bank,  34  Minn.  382;  26  N.  W.  Rep.  4, 
it  was  held  that  a  statute  providing  that  the  covenantor  should,  in  case  an 
incumbrance  appeared  of  record  to  exist  on  the  premises,  be  liable  for  all 
damages  incurred  in  removing  the  same,  applied  only  to  incumbrances  ap- 
pearing of  record  but  not  existing  in  fact,  and  was  not  intended  to  change 
the  rule  limiting  the  damages  for  a  breach  of  the  covenant  to  the  consider- 
ation money. 

"Walker  v.  Deaver,  5  Mo.  App.  139,  where  it  was  held  that  the  covenaniee 
is  entitled  to  recover  what  he  fairly  and  reasonably  paid  to  remove  the  in- 
cumbrance, regardless  of  the  consideration  money  and  interest,  and  that  the 
question  of  the  fairness  and  reasonableness  of  the  payment  so  made  was  for 
the  jury.  Dimmick  v.  Lockwood,  supra,  was  expressly  disapproved.  See, 
also,  Henderson  v.  Henderson,  13  Mo.  151;  St.  Louis  v.  Bissell,  46  Mo.  157; 
Winningham  v.  Pennock,  36  Mo.  App.  688. 
"Norton  v.  Babcock,  2  Met.  (Mass.)  510. 

21 


322  MARKETABLE    TITLE    TO    REAL    ESTATE. 

improvements  is  the  result  of  his  own  negligence.66  The  payment 
of  the  incumbrance  by  the  covenantee  is  a  material,  traversable 
fact,  and  in  an  action  on  the  covenant  should  be  set  forth  in  the 
declaration  or  complaint,  so  that  issue  may  be  taken  upon  it.67 

If  the  consideration  expressed  in  the  deed  be  merely  nominal, 
but  the  real  consideration  is  some  benefit  to  accrue  to  the  grantor 
not  easily  susceptible  of  exact  measurement  in  money,  such,  for 
example,  as  the  increase  in  the  value  of  adjoining  property  be- 
longing to  the  grantor  from  the  use  to  be  made  of  the  granted 
premises  by  the  grantee,  the  measure  of  damages  will  be  the 
amount  actually  paid  by  the  grantee  to  protect  himself  against 
the  incumbrance,  not  exceeding  the  then  value  of  the  premises.88 

§  132.  Measure  of  damages  where  the  incumbrance  is  per- 
manent. Where  the  incumbrance  is  permanent,  or  one  that  the 
covenantee  cannot  remove  as  a  matter  of  right,  he  will  be  entitled 
to  a  just  compensation  for  the  injury  sustained,69  the  measure  of 

"Dimmick  v.  Lockwood,  10  Wend.    (N.  Y.)    142. 

67  Pillsbury  v.  Mitchell,  5  Wis.  17,  citing  De  Forest  v.  Leete,  16  Johns. 
(N.  Y.)  122.  Funk  v.  Voneida,  11  S.  &  R,  (Pa.)  109;  14  Am.  Dec.  617. 
Tufts  v.  Adams,  8  Pick.  (Mass.)  549. 

"Utica  C.  &  S.  V.  R.  Co.  v.  Gates,  47  N.  Y.  Supp.  231;  21  Misc,  205,  in 
which  case  the  granted  premises  were  to  be  used  for  railroad  purposes. 

M3  Washb.  Real  Prop.  (4th  ed.)  495;  Sedg.  Dam.  (6th  ed.)  199;  Rawle 
Covt.  291.  Prescott  v.  Trueman,  4  Mass.  630;  3  Am.  Dec.  249;  Harlow  v. 
Thomas,  15  Pick.  (Mass.)  69.  Richmond  v.  Ames,  164  Mass.  467;  41  N.  E. 
Rep.  671.  Hubbard  v.  Norton,  10  Conn.  450;  Mitchell  v.  Stanley,  44  Conn. 
312.  The  incumbrance  complained  of  in  this  case  was  a  right  to  pass  and 
repass  on  the  premises  for  the  purpose  of  cleaning  a  canal.  The  actual  dam- 
age was  found  to  be  ten  dollars,  but  that  by  reason  of  the  easement  the  value 
of  the  land  was  diminished  by  $750.  Judgment  was  rendered  for  $750. 
Mackey  v.  Harmon,  34  Minn.  168;  24  N.  W.  Rep.  702.  The  measure  of  dam- 
ages for  a  breach  of  the  covenant  against  incumbrances  resulting  from  a 
building  restriction  is  the  actual  impairment  of  the  value  of  the  estate  be- 
cause of  the  incumbrance.  Foster  v.  Foster,  62  N.  H.  46.  In  Kellogg  v. 
Malin,  62  Mo.  429;  11  Am.  Rep.  426,  the  incumbrance  complained  of  was  a 
right  of  way  through  the  warranted  land.  The  court,  after  declaring  that 
the  grantee  was  entitled  only  to  nominal  damages  where  he  had  not  suffered 
any  actual  injury  from  the  incumbrance,  and  that  if  he  removed  the  incum- 
brance he  was  entitled  to  recover  what  he  paid  for  that  purpose,  if  reason- 
able, continued:  "When,  however,  the  incumbrance  has  inflicted  an  actual 
injury  upon  the  purchaser,  the  rule  can  only  be  generally  stated  to  be  that 
the  damages  are  to  be  proportioned  to  the  actual  loss  sustained.  Thus,  if  the 
incumbrance  be  of  a  character  which  cannot  be  extinguished,  such  as  an  ease- 
ment or  servitude,  an  existing  lease  or  the  like,  it  is  said  that  the  damages 
are  to  be  estimated  by  the  jury  according  to  the  injury  arising  from  its  con- 


COVENANT    AGAINST    INCUMBEANCES.  323 

•which  will  be,  as  a  general  rule,  the  difference  between  the  present 
value  of  the  premises  and  their  fair  market  value  without  the  in- 
cumbrance.70  If  the  incumbrance  consist  of  an  unexpired  lease  of 
the  premises,  the  whole  purchase  money  cannot  be  recovered  as 
damages.71  In  such  a  case  it  has  been  held  that  the  annual  value 
of  the  land,  or  the  interest  on  the  purchase  money,  is  the  proper 
rule  of  damages.72  This,  however,  has  been  denied,  and  the  better 
rule  declared  to  be  that  the  covenantee  is  entitled  only  to  a  just 
compensation  for  whatever  injury  he  may  have  suffered,  to  be 
determined  by  the  jury  from  all  the  circumstances  of  the  case,  for 
which  purpose  the  annual  value  or  annual  interest  on  the  purchase 
money  may  be  taken  into  consideration.73  If  the  covenantee  has 

tinuance.  There  is  a  good  reason  for  the  distinction.  In  case  of  an  incum- 
brance by  an  ordinary  lien  or  mortgage,  the  grantee  may  pay  off  the 
incumbrance  at  any  time  and  free  the  premises,  or  the  person  who  made  the 
lien  or  mortgage  may  extinguish  them,  and  the  grantee  may  never  be  injured. 
But  an  easement  or  servitude  is  unextinguishable  by  any  act  of  the  parties, 
either  grantor  or  grantee,  and  if  its  continuance  is  permanent  the  damages 
must  be  assessed  accordingly."  Whiteside  v.  Magruder,  75  Mo.  App.  364.  In 
Greene  v.  Creighton,  7  R.  I.  10,  it  was  held  that  the  covenantor  will  not  be 
liable  for  damages  arising  from  the  unfitness  of  the  premises,  by  reason  of 
the  easement,  for  use  in  connection  with  adjoining  premises,  for  which  use 
the  covenantee  purchased  the  premises,  the  covenantor  being  ignorant  of  such 
intended  use.  Such  damages  are  too  remote.  A  party  wall  standing  wholly 
on  the  warranted  land  is  an  incumbrance  for  which  the  grantee  is  entitled 
to  more  than  nominal  damages.  Mohr  v.  Parmelee,  43  N.  Y.  S.  C.  320.  In 
Kostenbader  v.  Price,  41  Iowa,  204,  where  the  incumbrance  consisted  of  a 
railroad  right  of  way  through  the  premises,  it  was  held  that  the  appreciation 
in  value  of  the  remainder  of  the  land  could  not  be  considered  in  estimating 
the  damages  to  the  covenantee.  A  decision  to  the  contrary  was  made  in 
Wadhams  v.  Swan,  109  111.  46.  An  annuity  charged  upon  the  premises  in 
favor  of  a  widow  is  not  a  permanent  incumbrance  entitling  the  purchaser  to 
damages  for  actual  injury  to  the  estate.  It  is  a  pecuniary  incumbrance, 
which  will  entitle  him  to  damages  only  so  far  as  he  may  have  made  pay- 
ments thereon.  Myers  v.  Brodbeck,  110  Pa.  St.  198;  5  Atl.  Rep.  662. 

70  Sutton  v.  Baillie,  65  Law  Times  Rep.  528.  Bronson  v.  Coffin,  108  Mass. 
175;  11  Am.  Rep.  335.  Streeper  v.  Abeln,  59  Mo.  App.  485.  The  real  measure 
of  damages  is  the  amount  of  actual  injury  to  the  premises,  and  not  such  sum 
as  the  grantee  might  be  required  to  pay  to  remove  the  easement.  Smith  v. 
Davis,  (Kans.)  24  Pac.  Rep.  428. 

"Rickert  v.  Snyder,  9  Wend.    (N.  Y.)   423. 

"Rickert  v.  Snyder,  9  Wend.  (N.  Y.)  423.  Porter  v.  Bradley,  7  R.  I.  542. 
Moreland  v.  Metz,  24  W.  Va.  137;  49  Am.  Rep.  246. 

"  Batchelder  v.  Sturgis,  3  Cush.  (Mass.)  204,  disapproving  Rickert  v. 
Snyder,  supra.  Brass  v.  Vandecar,  (Nebr.)  96  N.  W.  Rep.  1035.  The 


324  MARKETABLE    TITLE    TO    SEAL    ESTATE. 

been  kept  out  of  the  estate  by  a  life  tenant,  the  measure  of  dam- 
ages will  be  the  value  of  the  estate  for  the  time  that  he  has  been 
deprived  of  its  enjoyment.74 

The  fair  annual  rent  of  the  premises  will,  in  the  absence  of 
evidence  to  the  contrary,  be  taken  to  be  that  paid  by  the  tenant  in 
possession.75  If  the  incumbrance  consist  of  a  present  outstanding 
life  estate  it  has  been  held  that  the  value  of  that  estate,  as  gov- 
erned by  the  probable  duration  of  the  life  of  the  tenant,  is  the 
measure  of  the  plaintiffs  damages,  and  that  the  jury  may  make 
use  of  approved  tables  of  longevity  in  computing  the  damages.7' 
It  may  be  observed  here  that  wherever,  as  in  the  case  just  men- 
tioned, the  covenantee  is  entitled  to  prospective  as  well  as  past 
damages  for  a  breach  of  the  covenant  against  incumbrances  by 
which  he  is  kept  out  of  the  estate,  he  must  include  both  in  his 
recovery.  He  cannot  take  judgment  for  the  value  of  the  estate 
up  to  the  time  of  verdict,  and  after  the  estate  has  expired  main- 
tain another  action  to  recover  the  value  for  the  time  intervening 
between  the  judgment  in  the  first  action  and  the  expiration  of  the 
estate.  There  can  be  but  one  recovery  for  one  breach  of  the  cove- 
nant against  incumbrances,  and  the  judgment  for  the  annual  value 
of  the  estate  accrued  at  that  time  would  be  a  bar  to  any  further 
action  for  the  same  breach.77  Where  the  incumbrance  complained 
of  is  an  easement  which  has  never  been  used,  and  from  which  the 
covenantee  has  suffered  no  real  injury,  it  has  been  held  that  he 
can  recover  only  nominal  damages.78  But  the  fact  that  an  ease- 
ment or  servitude  was  extinguished  without  expense  to  the  plain- 
tiff before  action  brought,  will  not  of  necessity  deprive  him  of 
the  right  to  substantial  damages.  He  may  have  been  prevented 

measure  of  damages  is  the  rental  value  of  the  land  for  the  unexpired  term. 
Wragg  v.  Meade,  120  Iowa,  319;  94  N.  W.  Rep.  856. 

™  Christy  v.  Ogle,  33  111.  296. 

"Moreland  v.  Metz,  24  W.  Va.  137;  49  Am.  Rep.  246. 

w  Mills  v.  Catlin,  22  Vt.  98. 

"Rawle  Cork  §  189.  Taylor  v.  Hertz,  87  Mo.  660.  But  a  judgment  for 
nominal  damages  in  an  action  for  breach  of  the  covenant  against  incum- 
brances is  no  bar  to  an  action  on  a  covenant  of  warranty,  contained  in  the 
same  conveyance,  brought  after  the  incumbrance  was  enforced  and  the  plain- 
tiff evicted.  Donnell  v.  Thompson,  1  Fairf.  (Me.)  170;  25  Am.  Dec.  216. 

n  Rosenberger  v.  Keller,  33  Grat.  (Va.)  493.  Ensign  v.  Colt,  75  Conn. 
Ill;  52  Atl.  Rep.  829. 


COVENANT   AGAINST   INCUMBBANCES.  325 

from  improving  the  estate,  or  may  have  been  otherwise  injured 
by  the  existence  of  the  incumbrance.  He  is  entitled  to  compensa- 
tion for  whatever  actual  damage  he  may  have  suffered.79 

If  the  easement  affects  the  market  value  of  the  property,  the 
covenantee  is  entitled  to  recover  the  difference  between  the  value 
of  the  premises  with  and  without  the  easement,  though  he  has 
expended  no  money  on  account  of  the  easement.80 

Where  the  incumbrance  consists  of  a  restriction  of  the  uses  to 
which  the  premises  may  be  put,  and  the  grantee  is  made  defend- 
ant to  a  suit  to  enforce  the  restriction,  he  will  be  entitled  to  recover 
on  the  covenant  against  incumbrances  the  expenses  of  his  defence, 
including  fair  and  reasonable  attorney's  fees.  He  will  be  en- 
titled to  recover  what  his  attorney's  services  were  reasonably 
worth,  but  nothing  in  excess  of  the  value  of  such  services.81 

§  133.  PLEADING  AND  PROOF.  In  assigning  a  breach  of  the 
covenant  against  incumbrances,  it  is  not  sufficient  merely  to  nega- 
tive the  words  of  the  covenant,  alleging  that  the  premises  were  not 
free  from  incumbrances,  or  that  the  defendant  did  not  indemnify 
the  plaintiff,  and  save  him  harmless  from  incumbrances;  the 
plaintiff  must  go  further  and  set  forth  the  incumbrance  which 
produces  the  breach  ;82  that  is,  he  must  describe  the  incumbrance, 

"Wetherbee  v.  Bennett,  2  Allen  (Mass.),  428,  HOAB,  J.,  saying:  "The  in- 
etunbrance  was  a  right  of  way  over  the  land,  which  subsisted  at  the  time  of 
the  conveyance  and  for  some  time  after.  The  defendant  contended  that  the 
evidence  showed  that  the  plaintiff  had  never  been  disturbed  in  the  enjoyment 
of  his  estate  by  any  user  of  the  way,  and  that  the  right  of  way  had  been 
extinguished  without  expense,  and  asked  that  the  jury  be  instructed  to  return 
a  verdict  for  nominal  damages  only,  but  the  judge  declined  to  give  these 
instructions.  It  does  not  follow  from  these  facts  that  no  actual  damage  had 
been  sustained.  While  the  right  of  way  lasted  the  plaintiff  was  precluded 
from  using  the  part  of  the  land  covered  by  the  way  as  fully  as  he  might 
otherwise  have  done.  He  could  not  set  a  tree  or  a  post  or  a  building  upon  it, 
or  sell  or  lease  it  to  any  person  to  whom  such  an  incumbrance  would  be  ob- 
jectionable. It  was  an  apparently  permanent  subtraction  from  the  substance 
of  the  estate."  But  see  Ilcrrick  v.  Moore,  19  Me.  313,  where  it  was  held  that 
if  a  country  road,  being  an  incumbrance  on  the  land,  was  discontinued  with- 
out expense  to  the  plaintiff  before  he  brought  his  action,  he  could  recover  only 
nominal  damages. 

80  Herb  v.  Met.  Hosp.  &  Disp.,  80  N.  Y.  Supp.  552;  80  App.  Div.  145. 

MCharman  v.  Tatum,  66  N.  Y.  Supp.  275;  54  App.  Div.  61. 

"Marston  v.  Hobbs,  2  Mnss.  433;    3  Am.  Dec.  61;    Bickford  v.    Page,  2 


326  MARKETABLE    TITLE    TO    REAL    ESTATE. 

giving  name,  date,  amount  and  other  particulars  of  description, 
but,  of  course,  without  reciting  the  instrument  in  so  many  words,81 
It  is  necessary  that  the  incumbrance  be  substantially  described,  in 
order  that  the  court  may  determine  whether  it  be  in  fact  an  incum- 
brance.84 If  the  declaration  be  upon  a  special  or  limited  covenant, 
it  will  be  fatally  defective  if  it  does  not  allege  that  the  incum- 
brance complained  of  originated  from,  by,  or  under  the  grantor.85 
If  the  plaintiff  has  extinguished  the  incumbrance,  he  must  aver 
that  fact  in  the  declaration  ;86  and  the  declaration  will  be  had  on 
demurrer  if  he  fails  to  allege  that  he  has  not  been  reimbursed  by 
the  grantor.87  Under  a  statute  permitting  the  plaintiff  to  amend 
his  declaration  if  he  does  not  change  the  form  or  ground  of  his 
action,  he  may  add  a  new  count  setting  forth  a  new  and  distinct 
incumbrance.88 

The  burden  of  proof  will  be  on  the  plaintiff  to  establish  the 
existence  of  the  incumbrance,89  and  to  show  that  it  was  a  valid 
and  subsisting  lien  at  the  time  of  the  conveyance.90 

Mass.  455.  Mills  v.  Catlin,  22  Vt.  98.  Shelton  v.  Pease,  10  Mo.  473.  If  the 
facts  set  out  in  the  complaint  constitute  a  breach  of  the  covenant  against 
incumbrances  as  well  as  a  breach  of  the  covenant  of  warranty,  the  plaintiff 
is  not,  under  the  Code  practice,  bound  to  elect  upon  which  breach  he  will 
proceed.  Brans  v.  Schreiber,  (Minn.)  51  N.  W.  Rep.  120. 

"Duval  v.  Craig,  2  Wh.  (U.  S.)  45.  Morgan  v.  Smith,  11  III.  200.  It 
would  be  unsafe  to  set  forth  the  incumbrance  t'n  hcec  verba,  because  if  not 
accurately  described,  there  would  be  a  variance.  In  an  action  on  a  cove- 
nant against  incumbrances  where  the  breach  alleged  is  an  outstanding  tar,  » 
rariance  between  the  description  of  the  premises  contained  in  the  deed  and 
that  contained  in  the  assessment  roll  is  immaterial,  provided  the  same  land 
is  adequately  and  particularly  described  in  each,  though  by  different  worda. 
Mitchell  v.  Pillsbury,  5  Wis.  410. 

"Vorhis  v.  Forsyth,  4  Biss.   (C.  C.)   409. 

"Mayo  v.  Babcoek,  40  Me.  142.  The  incumbrance  complained  of  here  waa 
taxes  on  the  premises.  The  declaration  did  not  allege  that  they  were  assessed 
while  defendant  was  the  owner  of  the  property. 

"Ante,  §  131.  Pillsbury  v.  Mitchell,  5  Wis.  22.  De  Forest  v.  Leets,  16 
Johns.  (N.  Y.)  122.  The  reason  of  this  rule  is,  that  inasmuch  as  no  actual 
damage  necessarily  results  from  a  breach  of  the  covenant  against  incum- 
brances, it  must,  if  sustained,  be  specially  laid  to  prevent  surprise. 

"  Kent  v.  Cantrell,  44  Ind.  452. 

M  Spencer  v.  Howe,  26  Conn.  200. 

"Jerald  v.  Elly,  51  Iowa,  321;  1  N.  W.  Rep.  639. 

80  Abb.  Tr.  Ev.  520.  Kirkpatrick  v.  Pearce,  107  Ind.  520;  8  N.  E.  Rep.  573, 
citing  Cook  v.  Fuson,  C6  Ind.  521,  and  other  Indiana  cases. 


COVENANT    AGAINST    INCUMBEANCES.  327 

The  plaintiff  must  produce  in  evidence  the  deed  containing  the 
covenant  against  incumbrances.  If  the  deed  be  in  existence,  he 
cannot  show  by  parol  testimony  that  it  contains  such  a  covenant.91 

The  remedy  for  a  breach  of  a  covenant  against  incumbrances  is 
by  action  at  law  on  the  covenant,  and  not  a  suit  in  equity  to  com- 
pel the  covenantor  to  satisfy  and  discharge  the  incumbrance.92 

M  Patterson  v.  Yancey,  81  Mo.  379.  The  rule  requiring  the  best  evidence 
makes  the  production  of  the  deed  necessary. 

"Hastings  v.  Hastings,  58, N.  Y.  Supp.  671;  41  App.  Div.  540. 


CHAPTER  XIV. 

COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT. 

FORM.      §  134. 

CONSTRUCTION  AND  EFFECT.      §  135. 

QUALIFICATIONS  AND  RESTRICTIONS.      §    136. 

WHEN  IMPLIED.      §   137. 

PARTIES  BOUND  AND  BENEFITED.     §   138. 

Married  women.     §  138a. 

Heirs  and  devisees.     Joint  covenantors.      §  139. 

Personal  representatives.      §  140. 

Municipal  corporations.     §  140a. 

Who  may  sue  for  breach  of  warranty.     §  141. 
WHAT  CONSTITUTES  BREACH. 

Tortious  disturbances.      §  142. 

Eminent  domain  and  acts  of  sovereignty.      §   143. 

Actual  eviction. 

General  rule.     §  144. 

Entry  by  adverse  claimant.     Legal  process.     §   145. 

Constructive  eviction. 

Inability  to  get  possession.     §  146. 

Vacant  and  unoccupied  lands.     §  147. 
Surrender  of  possession.     §  148. 

Hostile  assertion  of  adverse  claim.     §  149. 
Purchase  of  outstanding  title.     §  150. 

Hostile  assertion  of  adverse  claim.     §  151. 

Loss  of  incorporeal  rights.      §   152. 
COVENANT  OF  WARRANTY  RUNS  WITH  THE  LAND. 

General  rule.      §   153. 

Assignee  may  sue  in  his  own  name.      §   154. 

Separate  actions  against  original  covenantor.      §   155. 

Release  of  covenant  by  immediate  covenantee.      §  156. 

Quit  claim  passes  benefit  of  covenant.     §   157. 

Immediate  covenantee  must  have  been  damnified.     §  158. 

Remote  assignee  may  sue  original   covenantor.      §   159. 

Mortgagee  entitled  to  benefit  of  covenant.     §  160. 

Original  covenantor  must  have  been  actually  seised.     §  161. 

Assignee  not  affected  by  equities  between  original  parties.      §  102. 

Covenant  extinguished  by  reconveyance  to  covenantor.     §  163. 
HEASURE   OF  DAMAGES. 

General  rule.      §   164. 

New  England  rule.      §    165. 

Amount  to  which  assignee  is  entitled.      §   166. 

Consideration  may  be  shown.      §   167. 

Where  covenantee  buys  in  paramount  title.     §  168. 

Loss  of  term  for  years.     §  169. 

Eviction  from  part  of  the  estate.     §  170. 


COVENANTS    OF    WABRANTY    AND    FOE    QUIET    ENJOYMENT.       329 

Improvements.      §   171. 

Interest  on  damages.      §  172. 

Costs.      §   173. 

Counsel  fees  and  expenses.      §  174. 

NOTICE  OF  HOSTILE  SUIT  AND  REQUEST  TO  DEFEND.      §  175. 
PLEADING  AND  BURDEN  OF  PROOF.      §   176. 
COVENANT  FOR  QUIET  ENJOYMENT.      §   177. 

§  134.  GENERAL  OBSERVATIONS.  FORM  OF  THE  COVENANT. 
The  modern  covenant  of  warranty  is  derived  from  the  ancient 
common-law  warranty,  though  it  is  neither  in  terms  nor  in  effect 
the  same.  The  latter  was  an  agreement  on  the  part  of  the  feoffor 
or  grantor  to  invest  the  feoffee  or  grantee  with  other  lands  of 
equal  value  in  case  he  should  be  evicted  from  the  demised  prem- 
ises.1 It  could  be  created  only  by  deed2  and  by  the  use  of  the 
technical  word  warrant,  the  formula  being,  "  I  and  my  heirs  will 
warrant."  8  It  was  a  covenant  real,  that  is,  a  covenant  for  the 
breach  of  which  a  personal  action  sounding  in  damages  could  not 
be  maintained.  The  remedy  was  by  "voucher  to  warranty,"  in 
which  the  feoffor  was  called  upon  to  make  good  his  covenant  by 
rendering  to  the  feoffee  other  lands  equal  in  value  to  those  lost; 
or  by  writ  of  warrantia  chartce*  in  which  the  same  relief  was 
afforded,  and,  it  seems,  a  recompense  in  money  in  case  the  feoffor 
were  unable  to  make  restitution  in  kind.6  With  the  disuse  of 
real  actions  warranty  fell  into  disuse  in  England,  and  has  been 
there  entirely  superseded  by  personal  covenants  for  title,  for  the 
breach  of  which  a  personal  action  of  covenant  sounding  in  dam- 
ages may  be  maintained.6  And  with  the  disuse  of  warranty  these 
ancient  remedies  have  also  disappeared  in  that  country. 

The  modern  covenant  of  warranty  is  peculiar  to  the  American 
States,  being  unemployed  in  England,7  where  its  place  is  taken  by 

'Co.  Litt.  365a.     Stout  v.  Jackson,  2  Rand.   (Va.)   142. 

*  Co.  Litt.  386a. 

*  Ego  et  hwredes  mei  warrantizabimus  in  perpetuum.    Bac.  Abr.  Warranty 
M.  Tabb  v.  Binford,  4  Leigh   (Va.),  140   (150)  ;  26  Am.  Dec.  317. 

'Stout  v.  Jackson,  2  Rand.  (Va.)   132. 

"Paxson  v.  Lefferts,  3  Rawle  (Pa.),  68,  n.,  citing  Fitzh.  Nat.  Brev.  135  H.; 
Id.  315. 

•The  covenant  of  warranty  is  not  found  among  those  enumerated  by  Sir 
Edward  Sugden.  See  Sugd.  Vend.  (8th  Am.  ed.)  ch.  14,  §  3. 

'3  Washb.  Real  Prop.  466  (660)  ;  Rawle  Covts.   (5th  ed.)   ch.  8. 


330  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

the  covenant  for  quiet  enjoyment.  !N"o  case,  it  is  believed,  can  be 
found  in  the  American  reports  in  which  the  covenant  of  warranty 
has  been  treated  as  a  covenant  real  and  judgment  entered  directing 
the  covenantor  to  yield  other  lands  to  the  covenantee  equal  in 
value  to  those  whereof  he  had  been  evicted ;  nor  any  case  in  which 
a  voucher  to  warranty  or  writ  of  warrantia  chartce  has  been  main- 
tained against  the  covenantor.  These  remedies  have  been  deemed 
unsuited  to  the  character  of  our  institutions  by  many  decisions  in 
the  older  States,  which  declare  that  the  remedy  of  the  covenantee 
in  case  of  eviction  is  by  personal  action  for  breach  of  the  covenant 
of  warranty.8 

The  modern  covenant  of  warranty  can,  like  the  ancient  warranty, 
be  created  only  by  deed.9  A  covenant  in  an  instrument,  in  form 
a  deed,  but  in  fact  a  will,  cannot  be  treated  as  a  covenant  of  war- 
ranty, and,  therefore,  is  not  broken  by  a  subsequent  conveyance 

8  Townsend  v.  Morris,  6  Cow.  (N.  Y.)  123,  a  leading  case.  Chapman  T. 
Holmes,  5  Halst.  (N.  J.  L.)  24.  Stout  v.  Jackson,  2  Rand.  (Va.)  132.  See 
the  erudite  opinions  of  GREEN  and  COALTER,  JJ.,  in  this  case,  in  which  the 
nature  of  the  real  actions  of  voucher  and  warratntia  chartce,  and  the  practice 
therein,  are  set  forth.  Ricketts  v.  Dickens,  1  Murph.  L.  (N.  C.)  343;  4  Am. 
Dec.  555;  Jacocks  v.  Gilliam,  3  Murph.  L.  (N.  C.)  47.  Booker  T.  Bell,  3 
Bibb  (Ky.),  173;  6  Am.  Dec.  641.  Jourdain  v.  Jourdain,  9  Serg.  &  R.  (Pa.) 
276;  11  Am.  Dec.  24.  Stewart  v.  West,  14  Pa.  St.  336.  The  American  doc- 
trine and  practice  upon  this  point  is  fairly  represented  by  the  following  ex- 
tract from  the  case  of  Booker  v.  Bell,  3  Bibb  (Ky.),  173;  6  Am.  Dec.  641: 
"  Where  the  conveyance  was  by  feoffment  with  warranty,  the  ancient  and 
usual  remedy  in  case  the  feoffee  was  evicted  was  by  voucher  or  warrantia 
chartce.  Whether  in  such  a  case  an  action  of  covenant  would  not  also  lie 
is  not  very  clearly  settled  in  the  English  books,  so  far  as  we  have  had  an 
opportunity  of  examining  them.  It  is,  however,  said  to  be  the  better  opinion 
that  it  would  not.  But  be  that  as  it  may,  it  does  not  necessarily  follow  that 
the  same  doctrine  will  hold  good  with  rega'rd  to  a  warranty  contained  in  a 
deed  of  bargain  and  sale,  or  other  deed  operating  under  the  statute  of  uses. 
It  is  evident  that  prior  to  that  statute,  if  any  action  would  lie  for  a  breach 
of  the  covenant  of  warranty  contained  in  such  a  deed,  it  must  have  been  an 
action  of  covenant.  It  could  then  have  been  but  a  personal  covenant,  and 
ought,  we  apprehend,  to  be  still  so  considered.  But  there  are  other  consider- 
ations which  we  think  are  entitled  to  greater  weight  upon  this  point.  The 
covenant  of  warranty  has  ever  since,  and  long  before  the  establishment  of  this 
commonwealth,  been  uniformly  treated  as  a  personal  covenant,  upon  which 
the  action  of  covenant  would  lie.  The  invariable  practice  for  so  many  years 
in  a  case  where  the  balance  hangs  so  nearly  in  equilibris,  ought  to  turn  the 
scale  in  favor  of  the  action;  more  especially  as  the  remedy  by  voucher  is 
taken  away  by  statute,  and  the  writ  of  warrantia  chartce  has  become  ob- 
solete." 

•Scott  v.  Scott.  70  Pa.  St.  244. 


COVENANTS    OF    WARRANTY    AND    FOB    QUIET    ENJOYMENT.       331 

on  the  part  of  the  maker  of  the  instrument.10  It  is  not  necessary, 
however,  that  the  covenant  should  appear  in  any  particular  part 
of  the  deed.11  The  four  corners  of  the  instrument  are  to  be  looked 
to  in  order  to  ascertain  the  intention  of  the  parties.  And  it  has 
been  held  that  a  covenant  of  warranty  indorsed  upon  a  deed  is 
valid.12  If  a  person,  under  a  fictitious  or  assumed  name,  execute 
a  conveyance,  he  will,  under  his  real  name,  be  bound  by  the  cove- 
nants for  title  therein  contained.13 

The  covenant  of  warranty  as  employed  in  America  is  either  gen- 
eral, that  is,  against  the  claims  of  all  persons  whatsoever,  or 
special,  that  is,  against  any  claim  by,  through  or  under  the 
grantor,  or  against  the  claims  of  a  designated  person  or  persons.14 
The  covenant  of  general  warranty  is  usually  thus  expressed :  "  The 
said  (grantor)  covenants  that  he,  his  heirs  and  personal  represent- 
atives, will  forever  warrant  and  defend  the  said  property  unto 
the  grantee,  his  heirs,  personal  representatives  and  assigns,  against 
the  claims  and  demands  of  all  persons  whomsoever."  The  cove- 
nant of  special  warranty  is  expressed  in  the  same  way,  except  the 
last  clause,  which  is  written  "  against  the  claims  and  demands  of 
the  (grantor),  and  all  persons  claiming  or  to  claim  by,  through 

"  Scoff  v.  Scoft,  70  Pa.  St.  244. 

"Midgett  v.  Brooks,  12  Ired.  L.  (N.  C.)   145,  148;  55  Am.  Dec.  405. 

"Platt  Covts.  136.     Coster  v.  Monroe  Mfg.  Co.,  1  Gr.  Ch.   (N.  J.)   478. 

"Preiss  v.  Le  Poidevin,  19  Abb.  N.  Cas.   (N.  Y.)    123. 

"See  §  67  note,  for  form  of  general  and  special  covenants  of  warrant/.  A 
covenant  to  defend  the  title  against  any  person  claiming  under  the  original 
grantee  or  patentee  of  the  land  is  equivalent  to  a  covenant  of  general  war- 
ranty. Little  v.  Allen,  56  Tex.  133.  The  word  "  warrant "  is  not  indispens- 
able in  a  covenant  of  warranty.  A  covenant  to  "  defend  "  the  title  against 
the  claims  of  all  persona,  etc.,  is  sufficient.  Kirkendall  v.  Mitchell,  3  McL. 
(U.  S.)  144.  An  interesting  case  arose  in  Wisconsin  in  which  the  question 
was  whether  the  covenant  was  to  be  treated  as  general  or  special.  A  printed 
form  for  a  special  warranty  deed  was  used,  containing  the  usual  clause  that 
the  grantor  the  peaceable  possession  of  the  premises  "  against  every  person 

claiming  any  part  thereof  by,  through,  or  under >-,  and  no  other , 

will  forever  warrant  and  defend."  The  deed  was  executed  without  filling 
these  blanks.  It  was  held  that  the  court  had  no  power  either  to  fill  the 
blanks,  so  as  to  make  a  special  warranty,  nor  to  disregard  them  and  treat 
the  language  as  a  general  warranty;  and  hence,  that  the  clause  was  mean- 
ingless, and  that  the  grantee,  who  had  been  evicted  by  the  holder  of  a  better 
title,  was  without  relief.  Miss.  River  Logging  Co.  v.  Wheelihan,  94  Wis.  96 ; 
68  N.  W.  Rep.  878. 


332  MAEKETABLE    TITLE    TO    REAL    ESTATE. 

or  under  him."  In  some  of  the  States,  these  forms  may,  by 
statute,  be  greatly  abbreviated,  a  covenant  that  the  grantor  "  will 
warrant  generally  the  property  hereby  conveyed,"  or  a  mere  con- 
veyance "  with  general  warranty,"  being  given  the  force  and  effect 
of  a  full  covenant  of  warranty.  In  the  same  way,  the  grantor 
may  "  warrant  specially  "  the  property  conveyed,  or  convey  "  with 
special  warranty,"  and  these  forms  will  be  given  the  same  effect 
as  a  covenant  of  special  warranty  expressed  at  full  length.15  We 
have  seen  that  at  common  law  a  warranty  could  not  be  created 
except  by  the  use  of  the  word  warrant.  But  no  such  strictness 
prevails  at  the  present  day.  While  the  foregoing  forms  are  those 
usually  employed,  the  law  has  not  appropriated  any  particular 
form  of  words  to  the  creation  of  a  covenant;  any  words  sufficient 
to  show  the  intention  of  the  parties  will  suffice  as  a  covenant.18 
In  some  of  the  American  States,  there  is  employed  what  is  called 
the  covenant  of  non-claim.  It  is  in  substance  a  covenant  by  the 
grantor  that  neither  he  nor  any  one  claiming  under  him  will  there- 
after lay  any  claim  to  the  granted  premises.  It  has  been  fre- 
quently held  to  be  the  same  in  effect  as  a  covenant  of  special 
warranty.17 

"  See  Va.  Code,  1887,  §  2446. 

"Platt  Covts.  28;  Rawle  Covts.  (5th  ed.)  §  22,  notes.  Johnson  r.  Hollens- 
worth,  48  Mich.  140.  Cole  v.  Lee,  30  Me.  392;  citing  4  Cruise,  447,  449. 
Lant  v.  Norris,  1  Burr,  290.  Buller's  N.  P.  156,  and  Cro.  James,  391.  Trutt 
v.  Spott,  87  Pa.  St.  339.  In  Midgett  v.  Brooks,  12  Ired.  L.  (N.  C.)  145;  55 
Am.  Dec.  405,  the  following  language  in  the  habendum  of  a  deed,  "  free  and 
clear  from  me,  my  heirs,  etc.,  and  from  all  other  persons  whatsoever,"  was 
held  sufficient  as  a  covenant  for  quiet  enjoyment.  The  objection  that  a  cove- 
nant of  warranty  is  inoperative  because  the  word  "  he  "  is  omitted  from  the 
blank  space  in  which  it  should  have  been  written  preceding  the  words  "  will 
forever  defend,"  etc.,  is  frivolous  and  untenable.  Peck  v.  Houghtaling,  38 
Mich.  127.  But  see  Bowne  v.  Wolcott,  (N.  Dak.)  48  N.  W.  Rep.  426,  and 
Thayer  v.  Palmer,  86  111.  477.  An  agreement  to  make  a  general  warranty 
deed  is  performed  by  a  deed  containing  a  recital  that  the  grantor  "  will  for- 
ever warrant  and  defend  the  title,"  etc.  4  Kent.  Com.  492.  Athens  v.  Nale, 
25  111.  198.  Caldwell  v.  Kirkpatrick,  6  Ala.  60;  41  Am.  Dec.  36.  The  fol- 
lowing language  in  a  deed,  "to  have  and  to  hold  the  said  land  unto  the  said 
grantee,  his  heirs  and  assigns  forever  as  a  good  and  indefeasible  estate  in  fee 
simple,"  does  not  amount  to  a  covenant  of  warranty.  Wheeler  v.  Wayne  Co., 
(111.)  24  N.  E.  Rep.  625. 

"Gee  v.  Moore,  14  Cal.  472;  Kimball  v.  Semple,  25  Cal.  452;  Morrison  v. 
Wilson,  30  Cal.  348.  Cole  v.  Lee,  30  Me.  392.  Newcomb  v.  Presbrey,  8  Met. 
(Mass.)  406;  Miller  v.  Ewing,  6  Gush.  (Mass.)  34;  Gibbs  v.  Thayer,  6  Gush. 
(Mass.)  33. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       333 

§  135.  CONSTRUCTION  AND  EFFECT.  In  a  number  of  the 
States  the  covenant  of  warranty  includes  by  virtue  of  statutory 
provision  or  judical  construction  all  the  other  covenants  for  title.1* 
But  in  most  of  the  States  it  is  regarded  only  as  a  covenant  against 
eviction  by  one  claiming  under  a  better  title.  It  is  not  to  be  de- 
nied, however,  that  the  popular  notion  of  a  covenant  of  warranty 
is  that  it  is  an  ample  protection  against  any  imperfection  in  the 
grantor's  title.  But  this  covenant  is  not  a  warranty  that  the  title 
is  good.  "  It  has  been  thought  by  country  scriveners,  and  even 
by  members  of  the  profession,  to  contain  the  elements  of  all  the 

M  So  in  Iowa,  Funk  v.  Creswell,  5  Iowa,  62 ;  Van  Wagner  v.  Van  Nostrand, 
19  Iowa,  422,  and  in  South  Carolina,  Evans  v.  McLucaa  12  S.  C.  56.  Butte 
v.  Riffe,  78  Ky.  352;  Smith  v.  Jones,  (Ky.)  31  S.  W.  Rep.  475.  Messer  v. 
Orstrich,  52  Wis.  693;  10  N.  W.  Rep.  6.  In  Ohio  a  covenant  of  warranty  is 
by  statute  made  to  include  a  covenant  of  seisin.  But,  if  the  deed  contain  a 
covenant  of  warranty  and  a  covenant  of  seisin  the  covenantee  cannot  recover 
for  a  breach  of  the  warranty  without  averring  an  eviction.  Innes  v.  Agnew, 
1  Ohio,  389.  Mr.  Rawle  closes  his  discussion  of  what  constitutes  a  breach  of 
the  covenant  of  warranty  with  the  following  observations,  which  will  be 
found  pertinent  to  the  subject-matter  of  the  text  above :  "  In  reviewing  the 
numerous  cases  upon  the  subject  of  what  constitutes  an  eviction  within  the 
covenant  of  warranty  it  seems  proper  to  recur  to  the  remark,  which  has  else- 
where been  made  in  the  course  of  this  treatise,  that  covenants  for  title  should 
not  and  cannot  be  regulated  in  all  cases  by  the  artificial  and  technical  rules 
which  properly  govern  the  law  of  real  estate.  Reference  may  be  had,  there- 
fore, not  only  to  the  intention  of  the  parties  as  expressed  in  the  conveyance 
which  contains  the  covenants,  but  also  to  the  local  practice  of  conveyancing 
itself.  In  those  parts  of  this  country,  if  any  such  exist,  where  the  refinements 
of  English  conveyancing  prevail  and  the  covenants  for  title  are  inserted  with 
exactness  and  fulness,  the  omission  of  a  covenant  for  seisin  or  against  incum- 
brances  would  justify  the  inference  that  the  terms  of  the  contract  did  not 
give  the  purchaser  the  peculiar  benefit  which  such  covenant  strictly  confers; 
and  the  more  exactly  and  particularly  the  covenants  were  expressed  the  more 
rigid  would  be  their  construction.  So  far,  however,  from  such  being  the 
practice  of  conveyancing  in  this  country  it  is  rarely,  if  ever,  the  case  that 
covenants  for  title,  which  are  inserted,  are  expressed  otherwise  than  very 
briefly.  So  in  some  of  the  States  long-settled  usage  has  caused  the  omission 
of  all  the  covenants  for  title  except  that  of  warranty,  which,  by  common  prac- 
tice at  least,  is  looked  upon  as  containing  all  that  is  necessary  to  assure  the 
title  to  the  purchaser.  Where  such  has  become  the  settled  practice  of  a  State 
it  is  suggested  with  great  deference  that  technical  rules  based  upon  a  differ- 
ent custom  of  conveyancing  lose,  to  some  extent  ,their  application,  and  to  say 
that  '  the  purchaser  should  have  protected  himself  by  other  covenants  '  is  to 
apply  a  hard  rule  in  States  where  those  other  covenants  are  never  employed." 
Covenants  for  Title  (5th  ed.),  §  154. 


334  MARKETABLE    TITLE    TO    REAL    ESTATE. 

rest;  but  the  terms  of  it  are  too  specific  to  secure  the  grantee 
against  every  disturbance  by  those  who  may  have  a  better  title.  It 
binds  the  grantor  to  defend  the  possession  against  every  claimant 
of  it  by  right,  and  it  is  consequently  a  covenant  against  eviction 
only."19  The  purchaser  should  require,  as  a  matter  of  abundant 
caution,  all  of  the  six  covenants  for  title,  for  there  may  be  occa- 
sions when  he  would  be  entitled  to  relief  under  some  one  of  these 
when  he  would  not  be  entitled  to  relief  under  the  covenant  of 
warranty.20 

Independently  of  custom  or  statutory  provision,  the  covenant  of 
warranty  includes  a  covenant  against  incumbrances,  in  the  sense 
that  an  eviction  under  an  incumbrance  is  as  much  a  breach  of  the 
covenant  of  warranty  as  if  the  covenantee  had  been  evicted  by  one 
claiming  under  a  superior  title.  In  such  a  case  the  purchaser  is 
as  fully  protected  by  the  covenant  of  warranty  as  he  would  be  by  a 
covenant  against  incumbrances.21  But  it  seems  that  an  agreement 
to  execute  a  conveyance  with  a  covenant  against  incumbrances 
would  not  be  performed  by  executing  a  deed  with  general  war- 
ranty.22 A  judgment  for  nominal  damages  for  a  breach  of  the  cove- 
nant against  incumbrances  is  no  bar  to  a  suit  for  breach  of  war- 
ranty after  an  eviction  under  the  incumbrance.23  The  general  rule, 
therefore,  is,  unless  varied  by  statute  or  custom  in  particular  local- 
ities, that  the  covenant  of  warranty  does  not  include  a  covenant 
against  incumbrances.24  The  ancient  common-law  warranty  ex- 
tended only  to  a  freehold  estate,  that  is,  an  estate  of  an  indeter- 
minate duration.  The  same  rule  has  been  recognized  as  applicable 
to  the  modern  warranty.25  Practically,  however,  it  would  seem  un- 
important, as  a  covenant  for  quiet  enjoyment  is  always  implied  in 

"GIBSON,  C.  J.,  in  Dobbins  v.  Brown,  12  Pa.  St.  79.  Oliver  v.  Bush,  125 
Ala.  534;  27  So.  Rep.  923. 

20  As  in  Wash.  City  Savings  Bank  v.  Thornton,  83  Va.  157;  2  S.  E.  Rep. 
193. 

21  King  v.  Kerr,  5  Ohio,  158 ;  22  Am.  Dec.  777.    Post,  §  355. 
22Bostwick  v.  Williams,  36  111.  65;  85  Am.  Dec.  385.     See,  also,  Findlay  v. 

Toncray,  2  Rob.   (Va.)   374,  379. 

""Donnell  v.  Thompson,  1  Fairf.   (Me.)   170;  25  Am.  Dec.  216. 

"See  ante,  §  119. 

"Co.  Litt.  389a;  Shep.  Touch.  184.    Mitchell  v.  Warner,  5  Conn.  497. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       335 

a  conveyance  for  years,  the  only  estate  less  than  freehold  that  is  of 

M 

any  consequence. 

The  effect  of  a  covenant  of  warranty  as  an  estoppel  is  elsewhere 
considered  in  this  work.27 

The  covenant  of  warranty  is  intended  as  much  for  the  protec- 
tion of  the  purchaser  against  known  defects  of  title  as  against 
those  which  are  latent  and  unknown.  It  is,  therefore,  no  defense 
to  an  action  on  the  covenant  that  the  purchaser  knew,  at  the  time 
it  was  taken,  that  there  was  an  adverse  claim  to  the  land.28  But 
a  covenant  of  warranty  will  not  embrace  incumbrances  known  to 
the  grantor  at  the  time  of  the  purchase,  and  which  he  agreed  to 
pay  off  as  a  part  of  the  purchase  money.  Parol  evidence  will,  in 
some  of  the  States,  be  admitted  to  show  such  an  agreement.29  A 
mere  sale  and  conveyance,  however,  with  general  warranty,  sub- 
ject to  a  prior  mortgage,  will  not  of  itself  be  construed  as  an 

"  Post,  "  Implied  Covenants,"  §  137. 

"Post,  §  216. 

"Barlow  v.  Delaney,  40  Fed.  Rep.  97.  Ballard  v.  BurrougKs,  51  Iowa,  81; 
50  N.  W.  Rep.  74.  Osburn  v.  Pritchard,  104  Ga.  195;  30  S.  E.  Rep.  656; 
Goodwin  v.  Maxwell,  106  Ga.  194;  32  S.  E.  Rep.  114.  McCall  v.  Wilkes,  121 
Ga.  722;  49  S.  E.  Rep.  722;  Allen  v.  Taylor,  121  Ga.  841;  49  S.  E.  Rep.  799. 
Bailey  v.  Murphy,  (Colo.  App.)  74  Pac.  Rep.  798;  Batterton  v.  Smith,  3 
Kans.  App.  419;  43  Pac.  Rep.  275.  Anthony  v.  Rockefeller,  (Mo.)  74  S.  W. 
Rep.  648.  Rea  v.  Minkler,  5  Lans,  (N.  Y.)  196,  where  the  covenant  was  taken 
with  knowledge  that  there  was  a  private  right  of  way  over  the  premises. 
Abernathy  v.  Boazman,  24  Ala.  189.  In  this  case  the  grantor  was  himself 
already  in  possession  under  an  adverse  claimant.  In  Tallmadge  v.  Wallis,  25 
Wend.  (N.  Y.)  115,  the  reason  for  the  rule  was  thus  explained  by  Chancellor 
WALWORTH  :  "  It  is  a  well-known  fact  that  land  is  frequently  conveyed  with 
general  warranty,  which  is  warranty  against  eviction  only,  when  both  parties 
to  the  sale  perfectly  understand  that  the  title  is  doubtful,  or  that  there  is 
some  outstanding  contingent  interest  which  may,  perhaps,  at  a  future  period, 
be  the  means  of  evicting  the  purchaser;  and  to  protect  the  purchaser,  and 
enable  him  to  recover  against  the  vendor  in  case  of  eviction,  the  covenant  of 
warranty  is  inserted  in  the  deed." 

"Allen  v.  Lee,  1  Ind.  58;  48  Am.  Dec.  352;  Pitman  v.  Conner,  27  Ind.  237. 
This  doctrine  is  perhaps  confined  to  the  States  of  Pennsylvania  and  Indiana. 
See  post,  §  269  and  ante,  §  269  and  ante,  §  121.  In  Ross  v.  Davis,  122  N.  C. 
265;  29  S.  E.  Rep.  338,  it  was  held  that  one  who  took  a  deed  with  general 
warranty  from  a  widow  as  life-tenant  and  her  daughter  as  remainderman, 
with  notice  of  the  life-tenancy,  and  who  was  evicted  after  tne  expiration  of 
the  life-tenancy  of  the  widow,  could  not  recover  on  the  warranty.  In  effect, 
the  court  held  that  her  warranty  extended  only  to  her  interest  in  the  estate. 


336  MAEKETABLE    TITLE    TO    REAL    ESTATE. 

agreement  by  the  grantee  to  pay  the  mortgage  as  a  part  of  the 
purchase  money.30 

Want  of  consideration  is  no  answer  to  an  action  for  breach  of  the 
covenant  of  warranty.81 

A  covenantee  who  has  been  evicted  from  the  demised  premises, 
and  who  has  recovered  damages  for  breach  of  the  warranty,  ia 
not  bound  to  reconvey  the  title;  if  justice  should  require  a  recon- 
veyance, it  should  be  enforced  by  making  the  collection  of  the 
judgment  conditional  upon  a  reconveyance.32 

It  will  be  seen  hereafter  that  the  covenant  of  warranty  docs  not 
amount  to  a  covenant  that  the  title  is  indefeasible,  and  that  it  is 
broken  only  by  an  eviction  of  the  covenantee.  Hence,  it  follows 
that  the  statute  of  limitations  will  not  begin  to  run  upon  the 
covenant  until  an  eviction  has  occurred,  there  being  up  to  that 
time  no  cause  of  action  on  the  covenant.33 

As  a  consequence  of  the  rule  that  all  prior  agreements  of  the 
parties  respecting  the  title  are  merged  in  a  conveyance  with  «.v  ve- 
naut  for  title,  the  grantor,  when  sued  for  a  breach  of  the  ccvotnnt 
of  warranty,  will  not  be  permitted  to  show  an  agreement  by  the 
purchaser,  prior  to  the  conveyance,  by  which  he  was  to  share  the 
expense  of  buying  in  an  outstanding  claim  to  a  part  of  the  premises, 
if  it  should  be  asserted.34 

The  United  States,  claiming  under  a  defective  scrip  entry  of 
public  lands,  is  a  "  person,"  within  the  meaning  of  a  warrant/ 
against  all  persons  lawfully  claiming  the  land.35 

Warranty  does  not  extend  to  quantity.  A  covenant  of  war- 
j 

ranty  in  a  conveyance  of  lands  by  metes  and  bounds  or  within 
certain  designated  limits,  and  as  containing  a  certain  number  of 
acres,  is  not  broken  if  the  lands  described  do  not  contain  the  number 

"Aufricht  v.  Northrup,  20  Iowa,  61. 

"Mather  v.  Corliss,  103  Mass.  568,  571;  Comstock  v.  Son,  154  Mass.  389; 
28  N.  E.  Rep.  296. 

S!Ives  v.  Niles,  5  Watts  (Pa.),  323. 

"Crisfield  v.  Storr,  36  Md.  129;  11  Am.  Rep.  480.     Post,  this  ch.,  §  144. 

"Post,  §  181;  ante,  §  121.  Beaseley  v.  Phillips,  10  Ind.  App.  182;  50  N.  E. 
Rep.  488. 

16  Giddings  v.  Holter,  19  Mont.  263 ;  48  Pac.  Rep.  8. 


COVENANTS    OF    WARRANTY    AND    FOB    QUIET    ENJOYMENT.       337, 

of  acres  mentioned.36  The  covenant  of  warranty  does  not  extend 
to  quantity.  Such  a  case  is  obviously  different  from  one  in  which 
the  grantee  is  unable  to  get  possession  of,  or  is  evicted  from,  a  por- 
tion of  the  lands  within  the  given  bounds.  A  deficiency  in  the  acre- 
age, when  the  sale  was  by  the  acre,  is  the  result  either  of  fraud  by 
the  vendor  or  mistake  of  the  parties ;  in  either  of  which  cases  the 
purchaser  has  his  remedy  in  equity.37  A  breach  of  warranty  can 
only  be  with  respect  to  the  precise  lands  conveyed  by  the  deed,  and 
parol  evidence  will  be , inadmissible  to  show  that  certain  lands  of 
which  the  plaintiff  has  been  evicted  were  included  in  his  purchase 
and  should  have  been  embraced  in  the  deed.38  And  if  a  deed  con- 

"Rawle  Covts.  (5th  ed.)  §  297.  Ricketts  v.  Dickens,  1  Murph.  (N.  C.) 
343;  4  Am.  Dec.  555;  Powell  v.  Lyles,  1  Murph.  (N.  C.)  348,  HALL,  J.,  dis- 
senting; Huntley  v.  Waddill,  12  Ired.  L.  (N.  C.)  32.  Dickinson  v.  Voorhees, 
7  W.  &  S.  (Pa.)  357.  Here  there  was  a  deficiency  of  445  acres  out  of  a 
tract  of  3,235  acres  conveyed  with  warranty.  Allison  v.  Allison,  1  Yerg. 
(Tenn.)  16;  Miller  v.  Bentley,  5  Sneed  (Tenn.),  674.  Daughtrey  v.  Knolle, 
44  Tex.  455;  Doyle  v.  Hord,  67  Tex.  621;  4  S.  W.  Rep.  241.  Sine  v.  Fox,  33 
W.  Va.  521;  11  S.  E.  Rep.  218;  Burbridge  v.  Sadler,  46  W.  Va.  39;  32  S.  E. 
Rep.  1028;  Adams  v.  Baker,  50  W.  Va.  249;  40  S.  E.  Rep.  356;  Maxwell  v. 
Wilson,  54  W.  Va.  495;  46  S.  E.  Rep.  349.  Gerhart  v.  Spalding,  1  N.  Y. 
Supp.  486.  Gunn  v.  Moore,  61  N.  Y.  Supp.  519;  46  App.  Div.  358.  But  see 
Moore  v.  Johnson,  87  Ala.  220,  where  it  was  said  that  the  covenant  of  seisin 
is  broken  by  a  material  deficiency  in  the  quantity  of  the  land  conveyed.  A 
covenant  that  the  grantor  was  seized  of  the  land,  described  in  the  deed  as 
containing  fifty  acres,  refers  to  the  quantity  and  quality  of  the  grantor's 
estate  in  the  land,  and  not  to  the  quantity  of  the  land,  and  therefore,  is  not 
broken  if  the  tract  contain  less  than  fifty  acres.  Austin  v.  Richards,  7 
Heisk.  (Tenn.)  665.  A  covenant  of  warranty  is  not  qualified  by  a  phrase 
such  as  "being  the  same  land  conveyed  by  A.  to  me;"  such  phrase  is  in- 
tended merely  as  an  aid  to  identifying  the  land.  Shaw  v.  Bisbee,  83  Me.  400 ; 
22  Atl.  Rep.  361.  Where  a  conveyance  is  made  by  course  and  distance,  and 
a  covenant  therein  extends  to  the  entire  quantity  of  land,  a  further  descrip- 
tion of  the  land  in  the  deed  as  a  tract  which  had  passed  to  the  grantor  by  cer- 
tain deeds  will  not  restrain  the  warranty  to  the  original  bounds  of  the  tract. 
Steiner  v.  Baughman,  12  Pa.  St.  106. 

37  Broadway  v.  Buxton,  43  Conn.  282.  Smith  v.  Fly,  24  Tex.  345 ;  O'Con- 
nell  v.  Duke,  29  Tex.  299.  Bennett  v.  Latham,  18  Tex.  Civ.  App.  403;  45 
S.  W.  Rep.  934;  Stark  v.  Homuth,  (Tex.  Civ.  App.)  45  S.  W.  Rep.  761; 
Barnes  v.  Lightfoot,  (Tex.  Civ.  App.)  62  S.  W.  Rep.  564. 

S8Tymason  v.  Bates,  14  Wend.  (N.  Y.)  671.  It  seems  that  this  rule  does 
not  apply  in  Texas.  Where  the  grantor  at  the  time  of  the  sale,  points  out 
the  boundaries  of  the  tract  sold,  as  established  by  natural  or  artificial  monu- 
ments, the  warranty  in  his  dee'd  applies  to  the  very  'land  so  pointed  out  by 
him,  though  the  calls  in  his  deed  to  the  covenantee  do  not  include  a  strip  on 

22 


338  MAEKETABLE    TITLE    TO    REAL    ESTATE. 

vej  a  lot  with  warranty  without  reference  to  or  description  of  the 
buildings  thereon,  the  fact  that  a  house  on  the  lot  projects  over, 
and  is  situated  partly  on  an  adjoining  lot,  so  that  the  grantee  is 
obliged  to  buy  the  adjoining  lot  to  save  the  house,  does  not  amount 
to  a  breach  of  the  covenant  of  warranty.29 

§  13G.  QUALIFICATIONS  AND  EESTBICTIONS  OF  THE  COVE- 
NANT OF  WABBANTY.  The  parties  may,  of  course,  so  frame  the 
covenant  of  warranty  as  to  limit  or  restrict  the  liability  of  the 
covenantor.  ~No  difficulty  arises  where  the  only  covenant  in  the 
conveyance  is  restricted  and  limited  in  express  terms.  But  some- 
times, and  this  may  well  happen  where  printed  forms  of  convey- 
ances are  used  and  the  blanks  are  filled  by  unskilled  persons,  a  deed 
will  be  found  to  contain  a  general  covenant,  followed  by  a  special 
covenant,  or  by  language  inconsistent  with  or  restrictive  of  the  gen- 
eral covenant.  Under  such  circumstances  the  following  rules  have 
been  formulated  by  Sir  Edward  Sugden  for  the  construction  of  the 
instrument  :40  (1)  An  agreement  in  any  part  of  a  deed  that  the  cove- 
nants shall  be  restrained  to  the  acts  of  particular  persons  will  be 
good,  notwithstanding  that  the  covenants  themselves  are  general 
and  unlimited.  (2)  General  covenants  will  not  be  cut  down  unless 
the  intention  of  the  parties  clearly  appears.41  (3)  Where  restrictive 
words  are  inserted  in  the  first  of  several  covenants  having  the  same 
object,  they  will  be  construed  as  extending  to  all  the  covenants, 
although  they  are  distinct.42  (4)  Where  the  first  covenant  is  gen- 
one  of  the  sides  of  the  land  as  pointed  out.  Meade  v.  Jones,  (Tex.  Civ.  App.) 
35  S.  W.  Rep.  310.  Meade  v.  Boone,  (Tex.  Civ.  App.)  35  S.  W.  483.  King 
v.  Bressie,  (Tex.  Civ.  App.)  32  S.  W.  Rep.  729.  And  in  Kentucky  it  has  been 
held  that  a  material  deficiency  in  the  quantity  of  land  conveyed,  is  a  breach 
of  the  covenant  of  warranty.  Patton  v.  Schneider,  23  Ky.  L.  Rep.  2190;  66 
S.  W.  Rep.  1003. 

w  Burke  v.  Nichols,  34  Barb.  (N.  Y.)  430;  S.  C.,  2  Keyes  (N.  Y.),  670. 

40  2  Sugd.  Vend.   (14th  ed.)   279  (605)  ;  Rawle  Covts.   (5th  ed.)   §  289. 

"2  Sugd.  Vend.  (14th  ed.)  605;  Rawle  Covts.  (5th  ed.)  §  295.  Everts  v. 
Brown,  1  D.  Chip.  (Vt.  96;  1  Am.  Dec.  699.  Black  v.  Barton,  13  Tex.  82. 
Where  a  deed  of  bargain  and  sale,  written  on  a  printed  blank,  contained  a 
proviso  following  immediately  after  the  covenants,  that  the  premises  should 
be  kept  for  the  manufacture  of  lumber,  it  was  held  that  the  proviso  applied 
to  the  grant  only,  and  not  to  the  intervening  covenants  for  title.  Reed  v. 
Hatch,  55  N.  H.  336. 

"Browning  v.  Wright,  2  Bos.  &  Pul.  13;  Howell  v.  Richards,  11  East,  633. 
Whallon  v.  Kauffman,  19  Johns.  (N.  Y.)  97.  Davis  v.  Lyman,  6  Conn.  252. 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.       339 

eral,  a  subsequent  limited  covenant  will  not  restrain  the  generality 
of  the  preceding  covenant,  unless  an  express  intention  to  do  so 
appear,  or  the  covenants  be  inconsistent,  or  unless  there  appear 
something  to  connect  the  general  covenant  with  the  restrictive  cove- 
nant, or  unless  there  are  words  in  the  covenant  itself  amounting  to 
a  qualification.43  As,  on  the  one  hand,  a  subsequent  limited  cove- 
nant does  not  restrain  a  preceding  general  covenant,  so,  on  the 
other,  a  preceding  general  covenant  will  not  enlarge  a  subsequent 
limited  covenant.  (6)  'Where  the  covenants  are  of  divers  natures 
and  concern  different  things,  restrictive  words  added  to  one  will 
not  control  the  generality  of  the  others,  although  they  all  relate  to 
the  same  land. 

If  the  grantor  intends  to  limit  his  liability  for  the  title  conveyed, 
he  must  either  convey  without  warranty,  or  insert  special  covenants 
in  the  deed  restricting  his  liability.  He  cannot  defend  an  action 
for  breach  of  warranty  on  the  ground  that  he  purchased  from  one 
with  whose  title  he  was  unacquainted,  and  intended  to  convey  to 
the  plaintiff  only  such  title  as  he  thus  acquired.44 

Duval  v.  Craig,  2  Wh.  (U.  S.)  45.  See,  also,  Nind  v.  Marshall,  1  Brod.  & 
Bing.  319.  Dickinson  v.  Hoomes,  8  Grat.  (Va.)  353.  A  formal  covenant  of 
warranty  will  not  be  cut  down  by  the  use  of  doubtful  expressions.  Thus, 
where  such  a  covenant  was  followed  by  the  words  "  according  to  a  mortgage 
this  day  assigned  "  to  the  grantee,  the  meaning  of  which,  upon  all  the  facts 
of  the  case,  was  left  in  doubt,  the  court  held  that  they  did  not  limit  or  con- 
trol the  preceding  covenant.  Cornish  v.  Capron,  136  N.  Y.  232;  32  N.  E. 
Rep.  "73.  Where  the  grantees  covenanted  that  they  would  "  warrant  specially 
the  land  hereby  conveyed,"  and  further,  in  the  same  clause,  "  that  they  have 
the  right  to  convey  the  said  land  to  said  grantees,"  it  was  held  that  the 
special  warranty  limited  the  operation  of  the  covenant  of  right  to  convey. 
Allemong  v.  Gray,  92  Va.  216;  23  S.  E.  Rep.  298. 

«Sugd.  Vend.  (14th  ed.)  606  (280)  ;  Rawle  Covts.  (5th  ed.)  §  291.  Rowe 
v.  Heath,  23  Tex.  619.  Sheets  v.  Joyner,  (Ind.)  38  N.  E.  Rep.  830.  Morri- 
son v.  Morrison,  38  Iowa,  73.  Peters  v.  Grubb,  21  Pa.  St.  460.  Atty.-Gen. 
v.  Purmort,  5  Paige  Ch.  (N.  Y.)  620.  See,  also,  Cole  v.  Hawes,  2  Johns.  Cas. 
(N.  Y.)  203.  Cornell  v.  Jackson,  3  Cush.  (Mass.)  506;  Phelps  v.  Decker, 
10  Mass.  267.  Bender  v.  Fromberger,  4  Dallas  (Pa.),  440,  where  it  was  held 
that  a  special  warranty  in  a  deed  would  not  control  a  preceding  general  war- 
ranty, if  it  appeared  from  the  face  of  the  deed  that  a  general  warranty  wns 
intended.  A  special  covenant  to  warrant  and  defend  the  premises  against 
the  grantor's  taxes,  and  against  the  grantor's  own  acts,  docs  not  limit  a  prior 
general  covenant  implied  from  the  words  "  convey  and  grant.''  Jackson  v. 
Grun,  112  Ind.  341;  14  N.  E.  Rep.  89. 

44  Chitwood  v.  Russell,  36  Mo.  App.  245. 


340  MARKETABLE    TITLE    TO    REAL    ESTATE. 

"\Yhere  a  deed  conveys  the  grantor's  right,  title  and  interest, 
though  it  contains  in  general  terms  a  covenant  of  general  warranty, 
the  covenant  is  regarded  as  restricted  and  limited  to  the  estate 
conveyed,  and  not  as  warranting  generally  the  title  to  the  land 
described.  The  covenant  of  warranty  is  intended  to  defend  only 
what  is  conveyed,  and  cannot  enlarge  the  estate  conveyed.45  But  if 
the  conveyance  be  of  the  "  right,  title  and  interest "  of  the  grantor 
in  certain  lands,  and  the  grantor  covenants  specially  to  warrant 
and  defend  the  premises  against  all  lawful  claims  arising  under 
himself,  the  covenant  will  be  construed  to  refer  to  the  lands 
described  in  the  deed,  and  not  to  the  right  and  title  of  the  grantor.48 
If  general  covenants  are  entered  into  contrary  to  the  intention  of 
the  parties,  special,  limited  or  restricted  covenants  having  been 
agreed  upon,  a  court  of  equity  will  correct  the  mistake,  and  reform 
the  instrument.47 

The  covenant  of  general  warranty  implied  from  the  use  of  the 
words  "  grant,  bargain,  and  sell,"  will  be  restricted  by  a  recital  of 
an  express  understanding  that  the  grantors  warrant  only  against 

^Washb.  Real  Prop.  665;  Rowle  Covt.  (5th  ed.)  §  298;  Wait's  Act  &  Def. 
391.  Blanchard  v.  Brooks,  12  Pick.  (Mass.)  67;  Allen  v.  Holton,  20  Pick. 
(Mass.)  463;  Sweet  v.  Brown,  12  Met.  (Mass.)  175;  45  Am.  Dec.  243; 
Stockwell  v.  Couillard,  129  Mass.  231.  Ballard  v.  Child,  46  Me.  153;  Bates 
v.  Foster,  59  Me.  158;  8  Am.  Rep.  406;  Blanchard  v.  Blanchard,  48  Me.  174. 
Kimball  v.  Semple,  25  Cal.  452.  Adams  v.  Ross,  30  N.  J.  L.  510.  McNear  v. 
McComber,  18  Iowa,  14.  Young  v.  Clippinger,  14  Kans.  148.  White  Y. 
Brocaw,  14  Ohio  St.  339.  Lamb  v.  Wakefield,  1  Sawy.  (U.  S.)  251.  Hope 
v.  Stone,  10  Minn.  141  (114).  Hull  V.  Hull,  35  W.  Va.  155;  13  S.  E.  Rep.  49. 

"Loomis  v.  Bedel,  11  N.  H.  74.  Mills  v.  Catlin,  22  Vt.  106.  Here  the  lan- 
guage of  the  deed  was  "  All  the  land  which  I  own  by  virtue  of  a  deed  dated 

*  *     *     from  Asa  S.  Mills,  recorded     *     *     *     being  all  my  light  and  title 
to  the  land  comprising  50  acres  off  of  the  east  end  of  lot  No.  75  in  said  town 

*  *     *     to  have  and  to  hold  the  above-granted  and  bargained  premises,"  etc. 
To  this  were  added  all  the  covenants  for  title,  and  it  was  held  that  the  thing 
granted  was  the  land   itself,  and  not  merely  such  title  to  the  land  as  the 
grantor  had,  and  that  he  was  liable  for  a  breach  of  the  covenants.     Clement 
v.  Bank,  61  Vt.  298;   17  Atl.  Rep.  717.     In  Texas  it  is  held  that  words  con- 
veying all  the  grantor's  "  right,  title,  and  interest "  "  to  have  and  to  hold  the 
premises "    followed    by    a    general    warranty,    constitute    a    warranty    deed. 
Garrett  v.  Christopher,  74  Tex.  453;  Bumpass  v.  Anderson,   (Tex.  Civ.  App.) 
51  S.  W.  Rep.  1103;  Kempner  v.  Lumber  Co.,  (Tex.  Civ.  App.)  49  S.  W.  Rep. 
412. 

4T2  Sugd.  Vend.   (14th  ed.)   609   (285)  ;  Rawle  Covts.   (5th  ed.)   §  296. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       341 

the  claims  of  themselves,  their  heirs,  or  those  through  whom 
they  claimed.  In  such  case  the  warranty  will  be  treated  as  special, 
and  not  general.48  If  the  deed,  by  the  granting  clause,  expressly 
provides  that  the  grant  is  subject  to  the  rights  of  grantees  under 
previous  deeds,  such  provision  applies  to  and  limits  the  operation 
of  full  covenants  of  warranty  by  which  it  is  followed.49 

§  136-a.  Exception  of  incumbrance.  It  has  been  held  that 
the  exception  of  an  incumbrance,  in  a  covenant  against  incum- 
brances,  does  not  restrict  the  operation  and  effect  of  a  subsequent 
covenant  of  warranty.50  There  is  a  conflict  of  authority  upon  the 
point,  but  the  better  opinion  would  seem  to  be  that  the  exception 
extends  to  the  covenant  of  warranty  also,51  in  view  of  the  rule  that 
restrictive  words  inserted  in  the  first  of  several  covenants  having 
the  same  object,  will  be  construed  to  extend  to  all  the  covenants, 
though  they  are  distinct;52  at  least  such  would  be  the  fair  con- 
struction of  the  exception  where  the  purchaser  expressly  assumes 
the  payment  of  the  incumbrance.  It  is  not  reasonable  to  suppose 
that  the  parties  having  exempted  the  grantor  from  a  liability  by 
a  provision  to  which  their  attention  was  specially  directed,  in- 
tended to  reimpose  that  liability  upon  him  by  a  subsequent  war- 
ranty necessary  for  the  protection  of  the  grantee  against  other  con- 
tingencies. 

§  137.  IMPLIED  COVENANTS.  At  common  law  certain  cove- 
nants were  implied  from  the  word  "  dedi  "  (I  have  given)  in  a 
feoff  ment,  and  from  the  word  "  dcmisi  "  (I  have  demised)  in  a 
lease,  but  no  covenant  was  implied  from  the  words  of  grant  in  con- 
veyances operating  under  the  statute  of  uses,  such  as  a  deed  of 
bargain  and  sale,  or  a  lease  and  release.53  In  the  United  States, 
the  feoffment  is  no  longer  in  use,  its  place  being  supplied  by  the 
deed  of  bargain  and  sale.  Hence,  much  of  the  learning  upon  the 

48  Miller  v.  Bayless,  101  Mo.  App.  487;  aff'd,  74  S.  VV.  Rep.  648. 

49  Koch  v.  Hustis,  113  Wis.  604;  89  N.  VV.  Rep.  838. 

"McLane  v.  Allison,  (Knns.  App.)  53  Pac.  Rep.  781,  citing  Bennett  v. 
Keehn,  67  Wis.  154;  30  N.  W.  Rep.  112;  Manuf'g  Co.  v.  Zellner,  48  Minn. 
408;  51  N.  W.  Rep.  379;  Welbon  v.  Welbon,  109  Mich.  356;  67  N.  W.  Rep. 
338. 

"Jackson  v.  Hoffman,  9  Cow.  (N.  Y.)   271. 

W2  Sugd.  Vend.  (14th  ed.)  279  (605). 

MRawle  Covts.  for  Title  (5th  ed.),  §  282. 


342  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

subject  of  implied  covenants  for  title  is  with  us  practically  obsolete. 
The  general  rule,  in  the  absence  of  any  statutory  provision  on  the 
subject,  is,  that  no  warranty  is  implied  in  the  conveyance  of  real 
property.6*  In  many  of  the  States  there  are  statutes  which  give  to 
certain  words  of  conveyance,  such  as  "  grant,  bargain  and  sell," 
effect  as  covenants  of  warranty.55  In  others,  implied  covenants  are 
expressly  abolished,  except,  perhaps,  in  the  case  of  leases.66  In 
others,  where  the  common  law  remains  unchanged  by  statute,  it  is 
apprehended  that  its  rules  in  this  regard  are  still  law,  but  practi- 
cally a  dead  letter  by  reason  of  the  disuse  of  those  conveyances  from 
which  the  implication  springs.57 

As  to  covenants  implied  by  force  of  statute,  it  is  deemed  in- 
expedient to  enter  into  any  discussion  of  their  form  and  incidents, 
since  they  vary  in  the  different  States,  and  the  decisions  respecting 
them  must  be  chiefly  of  mere  local  application.  It  is  to  be  ob- 
served, however,  that  if  a  deed  contains  covenants  for  title  in  the 
usual  form,  they  will  supersede  those  implied  under  the  statute 
from  the  words  "  grant,  bargain  and  sell,"  or  from  other  words  of 
like  import.58  A  covenant  of  general  warranty  will  not  be  implied 
from  the  recitals  of  a  deed,  when  the  deed  contains  an  express  cove- 
nant of  special  warranty.59  A  covenant  of  warranty  will  not  be 
implied  from  the  word  "  grant,"  where  a  statute  gives  that  effect  to 

64  3  Washb.  Real  Prop.  447 ;  Thompson  v.  Schenectady  R.  Co.,  124  Fed.  274. 

65  So  in  Delaware   (Rev.  Stat.  1874,  p.  500),  Indiana    (Rev.  Stat.  1881,  § 
2927),  Wisconsin  (Rev.  Stat.  1878,  §  2208).    In  a  number  of  the  other  States 
there  are  statutes  which  give  to  the  words  "  grant,  bargain  and  sell "  or  the 
like,  the  effect  of  covenants  for  seisin  and  against  incumbrances. 

"Mich.  How.  Amend.  Stat.  §  5656.  Minn.  Rev.  St.  1881,  p.  535.  Oregon, 
Doady's  Laws,  p.  647.  New  York,  3  Rev.  St.  (5th  ed.)  p.  29,  §  160. 

57  In  North  Carolina  it  is  held  that  there  is  no  implied  warranty  in  the  sale 
cf  realty,  and  hence  that  the  vendee  of  standing  timber,  without  express  war- 
ranty of  title,  could  not  recover  the  purchase  money  on  failure  of  the  title. 
Zimmerman    v.    Lynch,    130   N.   C.   61;    40    S.   E.   Rep.   841,    citing   Foy   v. 
Houghton,  85  N.  C.  168 ;  Huntley  v.  Waddell,  34  N.  C.  32.     Neither  is  there 
any  implied  warranty  of  the  title  to  mortgaged  premises  by  the  mortgagor  on 
foreclosure  sale.     Barden  v.  Stickney,  130  N.  C.  62;  40  S.  E.  Rep.  842. 

58  Douglas   v.  Lewis,   131  U.  S.   75.     Weems  v.  McCaughan,  7   Sm.   &  M. 
(Miss.)  472;  45  Am.  Dec.  314.     Finley  v.  Steele,  23  111.  56. 

"Buckner  v.  Street,  15  Fed.  Rep.  365.  McDonough  v.  Martin,  88  Ga.  675; 
16  S.  E.  Rep.  59. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       343 

the  words  "  grant,  bargain  and  sell,"60  nor  from  the  word  "  con- 
vey," when  the  words  "  grant,  bargain  and  sell  "  are  not  em- 
ployed.61 The  statutory  covenants  implied  from  the  words  "  grant, 
bargain  and  sell,"  are  as  operative  in  a  deed  of  trust  to  secure  pay- 
ment of  a  debt,  as  in  an  ordinary  fee  simple  deed.62 

Covenants  implied  in  a  lease.  As  to  covenants  implied  at  com- 
mon law,  it  is  believed  that  but  three  of  them  are  of  any  practical 
use  in  the  States  in  which  the  common  law  is  preserved,  namely : 

(1)  Those  implied  in  the  case  of  a  lease.    (2)  Those  implied  in  the 
case  of  an  exchange.   (3)  Those  implied  in  the  case  of  a  partition. 
These  are:  (1)  That  the  lessor  has  power  to  make  the  lease;  and 

(2)  That  the  lessee  shall  have  quiet  enjoyment  of  the  premises.83 
The  covenants  will  be  implied  wherever  the  relation  of  landlord 
and  tenant  is  created  by  the, instrument  in  writing,  whether  the 
word  "  demise  "  was  or  was  not  employed,64  and  the  covenant  for 
quiet  enjoyment  will  be  implied,  though  the  lease  was  by  parol.6* 
The  covenant  so  implied  will,  of  course,  be  limited  or  restrained 
by  any  express  covenant  which  the  lease  may  contain.66    So,  also, 
by  an  express  provision  in  the  lease  that  nothing  therein  contained 
shall  be  construed  to  imply  a  covenant  for  quiet  enjoyment.67    If 
the  estate  out  of  which  the  lease  was  granted  determines  before  the 
expiration  of  the  lease,  the  implied  covenant  will  be  at  an  end.68   A 
lease  of  the  right  to  collect  wharfage  for  a  year  is  not  a  "  con- 
veyance of  real  estate,"  within  the  meaning  of  a  statute  forbidding 

"  Wheeler  v.  Wayne  Co.,  132  111.  599;  24  N.  E.  Rep.  625.  See,  also,  Gee  v. 
Phurr,  5  Ala.  586.  Frink  v.  Darst,  14  111.  304;  58  Am.  Dec.  575.  Whitehill 
v.  Gotwalt,  3  Pen.  &  W.  (Pa.)  323. 

"Hettm  v.  Phillips,  (Ala.)  11  So.  Rep.  729. 

"Cockrill  v.  Bane,  94  Mo.  444.  Boyd  v.  Hazeltine,  110  Mo.  203;  Blanchard 
v.  Haseltine,  79  Mo.  App.  248. 

"Mayor  v.  Mabie,  3  Kern.  (N.  Y.)  151.  Avery  v.  Dougherty,  102  Ind.  443; 
52  Am.  Rep.  680.  Hyman  v.  Boston  Chair  Mfg.  Co.,  58  N.  Y.  Super.  Ct.  282 ; 
11  N.  Y.  Supp.  52. 

"Bandy  v.  Cartright,  8  Exch.  913.  Dexter  v.  Manley,  4  Cush.  (Mass.)  14. 
Ross.  v.  Dysart,  33  Pa.  St.  453. 

65  Bandy  v.  Cartright,  8  Exch.  913. 

"Rawle  Covts.   (5th  ed.)   §  275. 

"Maeder  v.  Carondelet,  26  Mo.  114. 

88  Adams  v.  Gibney,  6  Bing.  656.  Mayor  v.  Baggatt,  61  Miss.  383.  Mc- 
Xiowry  v.  Croghan,  1  Grant's  Cas.  (Pa.)  307,  311. 


344  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

the  implication  of  covenants  for  title  in  such  conveyances,  and  a 
covenant  for  quiet  enjoyment  will  be  implied  in  such  a  lease.69 

Covenants  implied  in  an  exchange.  The  common-law  deed  of 
exchange  is  rarely,  if  ever,  used  in  modern  times,  the  parties  usu- 
ally executing  separate  conveyances,  the  one  to  the  other.  But 
wherever  a  common-law  deed  of  exchange  is  executed  and  the  word 
"  exchange  "  is  used  as  the  word  of  conveyance,  covenants  for  quiet 
enjoyment  and  further  assurance  are  thereby  implied,  and  also  a 
condition  that,  in  case  of  a  failure  of  the  title,  the  party  injured 
may  re-enter  and  be  seised  of  his  former  estate  in  the  property 
which  he  gave  in  exchange.70 

Covenants  implied  in  partition.  General  covenants  of  war- 
ranty are  implied  in  a  partition  between  co-parceners  at  common 
law,  but  not  in  a  partition  between  joint  tenants  and  tenants  in 
common,  the  remedy  in  the  latter  case  being  by  bill  in  equity 
against  the  co-tenant  for  contribution.71  And  though,  in  case  of 
a  deed  of  partition  between  co-parceners,  covenants  of  Avarranty  are 
implied  wherever  the  common  law  remains  unchanged,  the  ex- 
istence of  such  covenants  is  of  little  practical  importance,  owing  to 
the  more  convenient  remedy  by  bill  in  equity  for  contribution.72 

Covenants  implied  from  recitals  in  a  deed.  No  covenants  are 
implied  from  the  mere  recitals  of  a  deed,  such  as  that  the  premises 
contain  a  specified  number  of  acres,  though  in  some  instances  such 
recitals  estop  the  grantor  from  asserting  an  after-acquired  claim, 
or  denying  the  existence  of  the  facts  recited.73 

§  138.  PARTIES  BOUND  AND  BENEFITED.  ]So  action  can 
be  maintained  for  breach  of  warranty  of  title  against  a  person  not 
a  party  to  the  covenant  of  warranty.  In  a  case  in  which  the 
vendor  had  only  the  equitable  title,  and  the  purchaser  accepted 
a  conveyance  with  warranty  from  a  third  person  in  whom  was 

"Mayor  v.  Mabie,  3  Kern.   (N.  Y.)    151. 

70  Co.  Litt.  51b.  384;  Rawle  Covts.  (5th  ed.)  §  270.  Gamble  v.  McClure,. 
69  Pa.  St.  282,  obiter,  the  parties  having  executed  separate  deeds  of  bargain 
and  sale. 

"Rawle  Covts.   (5th  ed.)  §§  277,  278. 

"Walker  v.  Hall,  15  Ohio  St.  355;  86  Am.  Dec.  482.  Sawyers  v.  Cator,  a 
Humph.  (Tenn.)  256;  47  Am.  Dec.  608. 

"Whitehill  v.  Gottwalt,  3  Pen.  &  W.  (Pa.)  327.  Ferguson  v.  Dent,  8  Mo. 
673.  Rawle  Covts.  (5th  ed.)  §§  280,  297. 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.       345 

the  legal  title,  without  requiring  the  vendor  to  join  in  such  con- 
veyance, it  was  held  that  he  could  not  maintain  an  action  against 
the  vendor  for  breach  of  warranty  on  eviction  by  a  mortgagee.74 

§  138-a.  Married  Women.  At  common  law  a  married  woman 
was  not  bound  by  her  covenant  of  warranty,  except  by  way  of 
rebutter  or  estoppel.  This  rule  has  been  affirmed  in  some  of  the 
American  States  by  statute,  while  in  others,  under  statutes  giving 
her  the  power  to  contract  with  reference  to  her  separate  estate 
as  if  ehe  were  sole,  she  has  been  held  liable  upon  her  cove- 
nants for  title,  and  in  still  other  States  there  are  statutes  which 
provide  in  terms  that  she  shall  be  so  liable.  Independent  of 
statute,  it  is  held  in  some  of  the  States  that  the  separate  estate  of 
a  married  woman  may  in  equity  be  subjected  to  the  satisfaction  of 
her  covenants  for  title,  while  in  others  such  relief  is  denied  the 
covenantee.75  In  a  State  in  which  she  is  bound  by  her  covenants, 
it  has  been  held  that  parol  evidence  is  not  admissible  to  shoAv  that 
she  joined  in  the  deed  merely  for  the  purpose  of  barring  her  in- 
choate marital  estate  in  the  land  conveyed.76 

§  139.  Heirs  and  devisees.  It  was  necessary  at  common  law 
that  an  heir  be  expressly  named  in  the  covenant  of  the  ancestor  in 
order  that  he  might  he  held  liable  for  the  breach.77  In  America, 
however,  by  virtue  of  generally  prevalent  statutory  provisions, 
which  make  the  real  and  personal  estate  of  a  decedent  assets  for  the 
payment  of  his  debts,  and  charge  the  heir  therewith  to  the  extent 

'•Bowling  v.  Benge,   (Ky.)   55  S.  W.  Rep.  422. 

"The  subject  of  a  married  woman's  liability  upon  her  covenants  for  title 
is  too  extensive  to  admit  of  consideration  in  the  limited  space  that  can  be 
devoted  to  it  in  this  work.  The  student  is  referred  to  Mr.  Rawle's  excellent 
•work  on  Covenants  for  Title  (Ch.  13),  and  to  the  various  treatises  on  the 
contract  liabilities  of  married  women  for  the  cases  and  authorities  upon  that 
subject.  In  Minnesota,  under  a  statute  allowing  a  married  woman  to  con- 
tract in  reference  to  her  separate  estate  as  if  she  were  a  feme  sole,  it  has 
been  held  that  she  is  bound  by  her  covenants  for  title.  Sandwich  Manfg.  Co. 
v.  Zellmer,  48  Minn.  408;  51  N.  W.  Rep.  379.  Security  Bank  v.  Holmes,  68 
Minn.  538;  71  N.  W.  Rep.  699.  But  a  married  woman  signing  a  deed  merely 
to  release  her  inchoate  dower  right  will  not  be  liable  upon  a  covenant  of 
warranty  contained  in  the  deed.  Semple  v.  Wharton,  68  Wis.  626 ;  32  N.  W. 
Rep.  690.  Pyle  v.  Gross,  92  Md.  132;  48  Atl.  Rep.  713;  Webb  v.  Holt,  113 
Mich.  338;  71  N.  W.  Rep.  637. 

78  Security  Bank  v.  Holmes,  68  Minn.  538;  71  N.  W.  Rep.  699. 

"  Co.  Litt.  209a. 


346  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

of  assets  received  by  him  from  the  estate  of  the  ancestor,78  he  is, 
under  such  circumstances,  liable  for  the  breach  of  his  ancestor's 
covenants  for  title,  whether  he  was  or  was  not  specially  named  in 
the  covenant.  In  some  of  the  States,  however,  he  cannot  he  held 
liable  until  the  personal  estate  has  been  exhausted."  At  common 
law  covenant  might  be  maintained  against  the  heir  upon  the  war- 
ranty of  the  ancestor,  and  such,  it  is  apprehended,  is  the  law  to-day 
in  most  of  the  American  States.  The  enforcement  of  such  a 
liability,  however,  is  peculiarly  appropriate  to  courts  of  equity 
which  are  charged  with  the  administration  of  the  estates  of  de- 
cedents and  armed  with  all  the  machinery,  such  as  account  and 
discovery,  needed  to  ascertain  the  quantum  of  assets  descended  to 
the- heir,  the  want  of  other  assets  applicable  to  the  satisfaction  of 
the  breach  of  covenant,  and  other  matters  necessary  for  the  deter- 
mination of  the  precise  sum  in  which  the  heir  is  liable.  In  some 
of  the  States  there  are  statutes  which  provide  that  an  heir  shall  be 
liable  only  in  equity  for  the  debt  of  his  ancestor,  and  under  such  a 
statute  it  has  been  held  that  covenant  could  not  be  maintained 
against  an  heir  on  the  warranty  of  the  ancestor.80  A  judgment 
against  the  heir  in  a  State  in  which  there  are  no  assets  descended  to 
him  will  not  bar  an  action  against  him  in  another  State  where  such 
assets  are  found.*1 

"See  the  statutes  of  the  several  States.  Whitten  v.  Krick,  31  Ind.  App. 
577;  68  N.  E.  Rep.  694.  An  heir  or  devisee  is  liable  on  the  covenants  of  the 
ancestor  or  testator  to  the  extent  of  the  personal  as  well  as  the  real  estate 
which  has  come  to  his  hands.  Ross  v.  Perry.  49  N.  H.  549.  Where  a  breach 
of  covenant  has  occurred  after  the  death  of  the  covenantor,  and  his  estate 
nas  been  fully  administered,  the  covenantee  will  not  be  driven  to  a  new  ad- 
ministration and  suit  against  the  administrator  d.  6.  n..  but  may  sue  the 
heirs  direct,  and  have  judgment  against  them  to  the  extent  of  assets  received 
by  them  from  their  ancestor.  Walker  v.  Deaver,  79  Mo.  664.  If  an  heir 
apparent  convey  with  warranty  and  then  dies  before  the  ancestor,  the  heirs 
of  such  heir  apparent  will  not  be  bound  by  the  warranty,  since  they  take,  not 
as  his  heirs,  but  as  heirs  of  his  ancestor.  Habig  v.  Dodge,  127  Ind.  31 :  25 
N.  E.  Rep.  182.  Where  the  grantor  conveys  with  special  warranty  his  heirs 
nr  devisees  can,  of  course,  be  held  liable  only  for  his  acts,  and  not  for  claim? 
to  which  the  covenant  did  not  extend.  Gittings  v.  Worthington,  67  Md.  139; 
9  Atl.  Rep.  228. 

"Royce  v.  Burrell,  12  Mass.  399.  See,  also,  caces  cited  Rawle  Covts.  for 
Title  (5th  ed.),  p.  520,  note  3. 

"  Rex  v.  Creel,  22  W.  Va.  373. 

"Beall  v.  Taylor,  2  Grat.   (Va.)   532:  44  Am.  Dec.  398. 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMEWT.       347 

Where  a  father,  being  possessed  of  a  contingent  remainder,  con- 
veyed the  fee  with  general  warranty,  under  the  impression  that  his 
estate  vested,  and  afterwards  his  estate  was  determined  by  the  hap- 
pening of  the  contingency,  his  children,  who  took  the  estate  under 
a  limitation  over,  were  held  not  bound  by  his  warranty,  because 
they  were  in  by  purchase  and  not  by  descent.82 

No  action  can  be  maintained  at  common  law  against  a  devisee 
upon  the  covenant  of  his  testator.  This  rule,  having  been  found 
to  encourage  fraudulent  devises,  was  altered  by  the  statute,  3  and  4 
W.  &  M.  c.  14,  §  3,  which  gives  the  covenantee  an  action  on  the 
covenant  against  the  devisee,  provided,  according  to  judicial  con- 
struction, the  breach  occurred  in  the  testator's  lifetime.  And  by 
subsequent  statutes  the  action  was  exended  so  as  to  embrace 
breaches  occurring  after  the  testator's  death.83  These  statutes,  or 
others  of  similar  import,  are  in  force,  it  is  apprehended,  in  all  of 
the  American  States. 

Joint  covenantors  —  Bankrupts.  If  a  covenant  of  warranty  be 
executed  by  two  or  more  persons  jointly,  it  will  be  presumed  that 
their  liability  is  joint,  that  is,  that  both  are  fully  liable  for  the 
breach,84  and  words  of  severance  will  be  required  to  render  one 
liable  only  for  his  own  acts.85  A  covenant  by  A.  and  B.  that  "  they 
will  warrant  generally  the  land,"  etc.,  is  a  joint  and  several  cove- 
nant, and  both  will  be  liable  for  the  full  amount  of  the  damages  in 
case  of  eviction.86  If  two  persons  convey  each  an  undivided  moiety 
of  certain  premises,  and  one  of  them  enters  into  limited  or  re- 
stricted covenants,  and  the  other  covenants  generally,  the  latter,  in 

w  Whitesides  v.  Cooper,  115  N.  C.  570;  20  S.  E.  Rep.  295. 

83  Rawle  Covts.  (5th  ed.)  ch.  13.  If  it  be  uncertain  whether  a  person  is 
bound  on  a  covenant  of  warranty  as  devisee  or  as  a  personal  representative, 
it  is  error  to  enter  up  judgment  against  him  in  both  capacities.  Johns  v. 
Hardin,  (Tex.)  16  S.  W.  Rep.  623. 

S4Platt  on  Covts.  117;  Rawle  on  Covts.  (5th  ed.)  §  304;  1  Wms.  Saunders, 
154,  n.  Donohue  v.  Emery,  9  Met.  (Mass.)  67;  Comings  v.  Little,  24  Pick. 
(Mass.)  266.  But  see  Redding  v.  Lamb,  81  Mich.  318;  45  N.  W.  Rep.  947. 

"As  in  Evans  v.  Saunders,  10  B.  Mon.  (Ky.)  291,  where  the  conveyance 
was  by  four  heirs,  and  each  covenanted  for  his  separate  and  undivided  share 
separately  to  defend.  See,  also.  Fields  v.  Squires,  1  Deady  (C.  C.),  366. 
Bardell  v.  Trustees,  4  Bradw.  (111.)  94. 

"'Click  v.  Green,  77  Va.  827.  Donohue  v.  Emery,  9  Met.  (Mass.)  67. 
Platt  on  Covts.  part  1,  ch.  3,  §  2. 


348  MABKETABLE    TITLE    TO    REAL    ESTATE. 

case  of  an  eviction  under  a  title  not  embraced  by  the  limited  cove- 
nants, can  be  held  liable  only  to  the  extent  of  his  interest  in  the 
premises,  that  is,  the  undivided  moiety,  or  one-half  of  the  damages 
resulting  from  the  breach.87 

A  discharge  in  bankruptcy  will,  of  course,  relieve  the  bankrupt 
from  liability  for  a  breach  of  a  covenant  of  warranty  occurring 
before  the  discharge.  But  the  bankrupt  is  not  relieved  where  the 
breach  occurs  after  the  discharge.88 

§  140.  Personal  representatives.  Fiduciaries.  Agents.  Cestui 
que  trust.  We  have  seen  that  warranty  was  a  covenant  real  at 
common  law,  one  consequence  of  which  was  that  a  personal  action 
of  covenant  could  not  be  maintained,  in  case  of  a  breach,  either 
against  the  covenantor  or  his  personal  representative.  Real  actions 
having  been  long  since  abandoned  both  in  England  and  America, 
covenant  may  be  maintained  against  the  personal  representative  of 
the  covenantor,  whether  named  in  the  covenant  or  not,  and  whether 
the  breach  occurred  before  or  after  the  death  of  the  testator  or  in- 
testate.89 We  have  also  seen  that  if  fiduciaries  choose  to  insert 
general  or  unlimited  covenants  in  any  conveyance  they  may  make, 
they  will  be  held  personally  liable  thereon.90  In  one  of  the  States, 
at  least,  a  trustee,  empowered  to  convey  with  warranty,  has  the 
right  to  insert  in  his  conveyance  covenants  binding  the  original 
grantor,  and  upon  a  breach  of  those  covenants  such  grantor,  the 
creator  of  the  trust,  will  be  held  liable  in  damages.91  A  crstui  que 
trust  cannot  be  sued  upon  the  covenants  of  the  trustee.92 

A  grantor  who  held  the  legal  title  merely  for  the  purpose  of 
conveying  according  to  the  direction  of  other  persons,  and  who  did 
not  receive  the  consideration  recited  in  the  deed,  is  not  liable  for 
a  breach  of  the  covenants  of  title  therein  contained.93 

87  Sutton  v.  Bailey,  65  Law  Times  Rep.  528. 

88  Bush  v.  Cooper,  18  How.  (U.  S.)  82.    Waggle  v.  Worthy,  74  Cal.  266;  15 
Pae.  Rep.  831.    Wight  v.  Gottschalk  (Tenn.),  48  S.  W.  Rep.  140;  43  L.  R.  A. 
189.     There  has  been  some  diversity  of  opinion  upon  this  point.     See  Rawle 
Covts.  (5th  ed.)  §  303. 

"Townsend  v.  Morris,  6  Cow.  (N.  Y.)  123.    Tabb  v.  Binford,  4  Leigh  (Va.), 
132;  26  Am.  Dec.  317.    Rawle  Covts.  (5th  ed.)  ch.  13. 
••Ante,  §  69. 

91  Thurmond  v.  Brownson,  69  Tex.  597 ;  6  S.  W.  Rep.  778. 
"Haran  v.  Stratton,  120  Ala.  145;  23  So.  Rep.  81. 
MDeaver  v.  Deaver,  137  N.  C.  240;  49  S.  E.  Rep.  113. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       349 

In  a  case  in  which  real  property  was  conveyed  to  the  agent  of  a 
corporation,  with  covenants  of  general  warranty  and  of  seisin,  the 
grantor  having  knowledge  that  the  purchase  was  made  for  the 
corporation,  and  that  the  purchase  money  was  paid  by  it,  the  prop- 
erty being  afterwards  conveyed  by  the  agent  to  the  corporation,  it 
was  held  that  the  corporation  was  entitled  to  the  benefit  of  the  cove- 
nants.94 

In  a  case  in  Texas,  it  appeared  that  an  agent  bought  land  and 
conveyed  it  with  warranty  in  his  own  name  to  one  who  was  ignor- 
ant of  the  agency.  It  also  appeared  that  the  agent  was  not  author- 
ized to  convey  the  land  and  warrant  the  title.  Nevertheless  it  was 
held  that  the  principal,  by  collecting  the  purchase-money  notes, 
ratified  the  transaction,  and  thereby  became  liable  on  the  warranty 
in  the  agent's  deed.95 

§  140-a.  Municipal  Corporations.  It  has  been  held  in  one 
of  the  States,  upon  principles  applicable  everywhere,  that,  in  the 
absence  of  statutory  authority,  a  municipal  corporation  has  no 
power  to  execute  a  deed  with  covenants  of  warranty,  such  power 
not  being  essential  to  the  purposes  and  objects  of  the  corporation ; 
and  hence,  that  the  grantee  in  a  deed  of  swamp  lands  executed  by 
a  county  with  covenants  of  warranty,  could  not  recover  against 
the  county  on  failure  of  the  title.96 

§  141.  Who  may  sue  for  breach  of  warranty.  For  a  breach 
of  the  covenant  of  warranty  occurring  in  the  lifetime  of  the  cove- 
nantee,  his  personal  representative  alone  can  sue.  The  right  to 
recover  damages  for  the  breach  is  a  chose  in  action,  which  passes, 
like  other  personal  assets,  to  the  executor  or  administrator.37  But  if 
the  breach  occur  after  the  death  of  the  covenantee,  the  right  of 
action  accrues  to  the  heir,  devisee,  or  assignee,  according  to  whether 
the  premises  have  passed  into  the  hands  of  the  one  or  the  other.98 
An  assignee  of  the  covenantee  may,  of  course,  sue  for  a  breach  of 
the  covenant  of  warranty  where  he  himself  is  evicted,  or  where  he 

"Cent.  Appalachian  Co.  v.  Buchanan,  90  Fed.  Rep.  454. 
95  Rutherford  v.  Montgomery,  14  Tex.  Civ.  App.  319;  37  S.  W.  Rep.  625. 
88  Harrison  v.  Palo  Alto  Co.,  104  Iowa,  383;  73  N.  W.  Rep.  872. 
""Grist  v.  Hodges,  3  Dev.  L.   (N".  C.)  201.    Wilson  v.  Peete,  78  Ind.  384. 
"Pence  v.  Duval,  9  B.  Mon.   (Ky.)  48. 


350  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

has  been  held  liable  upon  his  own  warranty  of  the  same  premises 
to  a  subsequent  grantee."  The  covenant  of  warranty,  in  form, 
undertakes  to  warrant  and  defend  the  grantee,  "  his  heirs  and 
assigns,"  against  the  claims  of  all  persons,  etc.,  but  it  is  not  neces- 
sary that  either  the  heirs1  or  assigns2  be  mentioned  in  order  to  give 
them  the  benefit  of  the  covenant.  The  right  of  a  subsequent  grantee 
of  the  premises  to  sue  upon  the  covenant  of  a  remote  grantor  is 
hereafter  considered  in  this  chapter.  Tenants  in  common,  holding 
under  the  same  deed  as  grantees,  have  several  freeholds,  and  may 
sue  separately  for  breach  of  the  covenant  of  warranty.3  A  tenant 
dower,  who  is  evicted,  cannot  maintain  an  action  on  a  warranty 
in  the  conveyance  to  her  husband.  The  right  of  action  passes  to 
the  husband's  representatives,  and  her  remedy  is  by  a  new  assign- 
ment of  dower.4 

§  142.  WHAT  CONSTITUTES  BREACH.  Tortious  disturbance  or 
eviction.  Collusion.  The  covenant  of  warranty  is  broken  by  an 
eviction  only,  and  the  covenant  for  quiet  enjoyment  "by  an  eviction, 
or  by  a  substantial  disturbance  of  the  covenantee  in  the  enjoyment 
of  the  estate,  though  such  disturbance  does  not  amount  to  an  evic- 
tion.6 In  either  case,  the  breach  must  result  from  the  acts  of  one 
having  a  better  title  to  the  premises  than  the  covenantor.  An  evic- 
tion or  disturbance  of  the  possession  by  a  trespasser,  a  mere  wrong- 
doer, or  a  person  having  a  defeasible  claim  to  the  premises,  does 
not  amount  to  a  breach  of  either  covenant.  In  other  words,  as  has 
been  frequently  said,  the  covenant  of  warranty  and  the  covenant 

"See  post,  §§  153,  160. 

*2  Sugd.  Vend.  577.     Lougher  v.  Williams,  2  Lev.  92. 

2  2  Sugd.  Vend.  577,  and  cases  cited;  Platt  Covt.  523;  3  Law  Lib.  234. 
Redwine  v.  Brown,  10  Ga.  318;  Leary  v.  Durham,  4  Ga.  603.  See  Colby  v. 
Osgood,  29  Barb.  (N.  Y.)  339.  The  contrary  has  been  held  in  North  Carolina, 
Smith  v.  Ingram,  130  N.  C.  100;  40  S.  E.  Rep.  984. 

'Lamb  v.  Danforth,  59  Me.  322;  8  Am.  Rep.  426. 

4  St.  Clair  v.  Williams,  7  Ohio,  396. 

•Kent  Com.  558  (473),  <$  aeq.;  3  Washb.  Real  Prop.  ch.  5,  §  5;  Rawle 
Covt.  for  Title  (5th  ed.),  ch.  8.  If  the  grantee  with  covenant  for  quiet  enjoy- 
ment be  let  into  possession,  the  covenant  is  not  broken  merely  because  the 
grantor  turns  out  to  have  had  only  a  life  estate  instead  of  a  fee.  Wilder  v. 
Ireland,  8  Jones  L.  (N.  C.)  88.  But  if  the  life  estate  fall  in  and  the  coven- 
antee be  evicted,  the  covenant  for  quiet  enjoyment  is  of  course  broken. 
Parker  v.  Richardson,  8  Jones  L.  (N.  C.)  452. 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.       351 

for  quiet  enjoyment  are  not  broken  by  a  tortious  disturbance  or 
eviction.6 

Neither  are  they  broken  by  a  collusive  eviction;7  as  where  the 
title  was  outstanding  in  the  United  States  for  want  of  proper  entry, 
and  the  grantee  procured  a  third  person  to  enter  the  land  and  take 
the  title  for  his  use,  and  thereafter  suffered  a  pretended  eviction 
by  the  patentee.8 

The  cases  deciding  that  a  tortious  disturbance  is  no  breach  of  the 
covenant  for  quiet  enjoyment  have,  in  most  instances,  arisen  be- 
tween landlord  and  tenant.  It  is  clear  that  in  a  lease  a  general 
covenant  for  quiet  enjoyment  extends  only  to  entries  and  interrup- 
tions by  those  who  have  lawful  right,  for  the  tenant  has  his  remedy 
by  action  against  all  trespassers  and  wrongdoers.9  Therefore, 
where  the  leased  premises  had  formerly  been  a  house  of  ill-repute, 

•2  Sugd.  Vend.  (8th  Am.,  ed.)  271  (600);  Washb.  Real  Prop.  427;  Rawle 
Covts.  (5th  ed.)  §  127;  Taylor  Landlord  &  Tenant,  §  304,  et  seq.  Wotton  v. 
Hele,  2  Saund.  177,  leading  case;  Howell  v.  Richards,  11  East,  833,  642, 
dictum;  Hayes  v.  Bickerstaff,  Vaugh.  118.  Andrus  v.  Smelting  Co.,  130  U. 
S.  643.  Hoppes  v.  Cheek,  21  Ark.  585.  Playter  v.  Cunningham,  21  Cal.  232; 
Branger  v.  Manciet,  30  Cal.  624.  Davis  v.  Smith,  5  Ga.  274;  47  Am.  Dec. 
279.  Kimball  v.  Grand  Lodge,  131  Mass.  59.  Folliard  v.  Wallace,  2  Johns. 
(N.  Y.)  395;  Beddoe  v.  Wadsworth,  21  Wend.  "(N.  Y.)  120;  Kelly  v.  Dutch 
Church,  2  Hill  (N.  Y.),  105.  Spear  v.  Allison,  20  Pa.  St.  200;  Schuylkill  & 
Dauphin  R,  Co.  v.  Schmoele,  57  Pa.  St.  275.  Rantin  v.  Robertson,  2  Strobh. 
L.  (S.  C. )  366,  case  of  personal  property.  Underwood  v.  Birchard,  47  Vt. 
305.  The  covenantee  cannot  recover  in  an  action  for  breach  of  warranty  the 
value  of  timber  wrongfully  taken  from  the  lanH  by  one  having  no  valid  claim 
to  the  land.  Mclnnis  v.  Lyman,  62  Wis.  191.  An  illegal  tax  sale  and  re- 
demption therefrom  constitutes  no  breach  of  the  covenant  against  incum- 
brances,  nor,  it  is  apprehended,  of  the  covenant  of  warranty.  Cummings  v. 
Holt,  56  Vt.  384.  Evidence  that  certain  persona  are  in  possession  of  the 
warranted  premises,  claiming  under  a  grantee  of  one  who  purchased  at  a 
sheriff's  sale  under  judgment  against  the  covenantor,  without  showing  a  con- 
veyance from  such  grantee,  is  insufficient  evidence  of  an  eviction  under 
paramount  title,  since,  for  aught  that  appears  to  the  contrary,  those  in 
possession  may  be  mere  trespassers.  Jenkins  v.  Hopkins,  8  Pick.  (Mass.) 
346. 

7  Davis  v.  Smith,  5  Ga.  247 ;  48  Am.  Dec.  279. 

•Frix  v.  Miller,  115  Ala.  476;  22  So.  146.     See  post  §  202. 

•Kimball  v.  Grand  Lodge,  131  Mass.  59,  63,  citing  Ellis  v.  Welch,  6  Mass. 
246;  4  Am.  Dec.  122;  Shearman  v.  Williams,  113  Mass.  4S1.  Gardner  v. 
KetelUs,  3  Hill  (N.  Y.),  330;  38  Am.  Dec.  637.  Howell  v.  Richards,  11  East, 
633,  642.  Dudley  v.  Folliott,  3  T.  R.  584 :  Nash  v.  Palmer,  5  M.  &  S.  374. 


352  MARKETABLE    TITLE    TO    REAL   ESTATE. 

and  the  lessee  was  so  constantly  disturbed  by  the  calls  of  obnoxious 
persons  that  he  was  compelled  to  leave  the  premises,  it  was  held 
that  there  was  no  breach  of  the  covenant  for  quiet  enjoyment,  and 
that  he  could  not  recover  damages.10  And  to  constitute  a  breach  of 
this  covenant,  the  person  who  disturbs  the  tenant  must  have  some 
lawful  interest  or  right  in  the  realty  and  not  merely  a  title  to  some 
chattel  that  may  be  upon  it,11  The  fact  that  leased  premises  were, 
at  the  time  of  the  lease,  in  the  adverse  possession  of  a  stranger,  is 
no  breach  of  the  covenant  for  quiet  enjoyment,  if  the  person  in 
possession  was  there  without  lawful  right.12  The  paramount  title 
under  which  the  covenantee  is  evicted  need  not  be  a  title  in  fee 
simple.  The  covenant  of  warranty  applies  as  well  to  the  pos- 
session as  to  the  title,  and  if  the  covenantee  be  evicted  by  one 
having  a  term  for  years  in  the  premises,  or,  in  fact,  any  estate  less 
than  a  fee  simple,  the  covenant  is  broken,  and  a  right  of  action 
ensues.13  Upon  the  principle  that  the  covenant  of  warranty  is  not 
broken  by  a  tortious  disturbance,  the  covenantor,  as  will  hereafter 
be  seen,  is  not  liable  for  expenses  incurred  by  the  covenantee  in 
defending  the  title  against  an  unfounded  claim.14 

But  the  rule  that  a  covenant  for  quiet  enjoyment  is  not  broken 
by  a  tortious  disturbance  does  not  apply  where  the  disturbance  was 
by  the  covenantor  or  those  acting  under  his  authority  or  direction, 
provided  his  acts  amounted  to  an  assumption  of  right  and  title," 

10Meeks  v.  Bowerman,  1  Daly  (N.  Y.),  99. 

"Kimball  v.  Grand  Lodge,  131  Mass.  59,  63,  where  the  breach  complained 
of  was  the  removal  of  certain  fixtures  from  the  demised  premises  by  a  prior 
tenant.  But  if  a  prior  tenant  remove  a  building  from  the  premises  under  aa 
agreement  with  the  grantor  or  lessor,  this  will  constitute  a  breach.  West 
v.  Stewart,  7  Pa.  St.  123. 

13  University  v.  Joslyn,  21  Vt.  52. 

"Rickert  v.  Snyder,  9  Wend.   (N.  Y.)   420. 

"Post,  §   142.     Butterworth  v.  Volkening,  4  Thomp.  &  C.   (N.  Y.)    650. 

15  2  Sugd.  Vend.  (8th  Am.  ed.)  272  (600);  Rawle  Covt.  (5th  ed.)  §  128. 
Corus  Case,  Cro.  Eliz.  544.  Crosse  v.  Young,  2  Show.  415.  Sedgewick  Y. 
Hollenback,  7  Johns.  (N.  Y.)  376;  Dyett  v.  Pendleton,  8  Cow.  (N.  Y.)  727; 
Mayor  v.  Mabie,  3  Kern.  (N.  Y.)  131.  Surget  v.  Arighi,  11  Sm.  &  M.  (Miss.) 
87;  49  Am.  Dec.  46.  If  the  landlord  permits  a  building  to  be  erected  on  hi6 
own  land  so  as  to  encroach  on  the  adjoining  demised  premsies,  this  is  a 
breach  of  the  covenant  for  quiet  enjoyment.  Sherman  v.  Williams,  113  Mass. 
481.  Giving  out  that  the  covenantee  has  no  right  to  premises,  and  bringing 
suits  against  him  and  his  tenants,  in  consequence  of  which  the  tenants  quit 
the  premises,  and  the  covenantee  is  unable  to  rent  them,  amounts  to  an 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.       353 

and  were  not  mere  trespassers.16  The  failure  of  the  landlord  to 
keep  the  premises  in  repair,  by  reason  of  which  the  tenant  is  com- 
pelled to  abandon  the  premises,  is  no  breach  of  the  covenant  for 
quiet  enjoyment.  The  lessee  should  protect  himself  by  a  covenant 
to  repair.17  If  the  covenant  be  against  the  claims  of  all  persons 
whatsoever,  it  will,  as  we  have  seen,  be  restricted  to  the  acts  of 
persons  having  lawful  claims, j8  but  if  the  covenant  be  expressly 
against  all  pretending  to  claim,19  or  against  the  acts  of  designated 
persons,20  it  will  embrace  tortious  disturbances  by  such  pretenders 
or  persons  named. 

eviction  on  the  part  of  the  covenantor.  Levitsky  v.  Canning,  36  Cal.  299. 
Held,  also,  in  the  same  case,  that  the  entry  of  the  lessor  upon  the  roof  of  the 
demised  premises,  and  converting  the  same  into  a  wash  house  or  place  of 
drying  clothes,  was  a  breach  of  the  covenant  for  quiet  enjoyment.  If  the 
wrongful  acts  of  the  lessor  upon  the  demised  premises  are  such  as  perma- 
nently to  deprive  the  lessee  of  the  beneficial  enjoyment  of  them,  and  the 
lessee,  in  consequence  therof,  abandons  the  premises,  it  is  an  eviction,  and  the 
intent  to  evict  is  conclusively  presumed.  Skally  v.  Shute,  132  Mass.  367. 

"Mayor  v.  Mabie,  13  N.  Y.  151;  Loundsbery  v.  Snyder,  31  N.  Y.  514; 
Kdgerton  v.  Page,  20  N.  Y.  281;  Randall  v.  Albertis,  1  Hilt.  (N.  Y.)  285; 
Drake  v.  Cockroft,  4  E.  D.  Smith  (N.  Y.)  34;  Levy  v.  Bond,  1  E.  D.  Smith 
(N.  Y.),  169;  Campbell  v.  Shields,  11  How.  Pr.  (N.  Y.)  564;  Ogilvie  v.  Hall, 
5  Hill  (N.  Y.),  52;  Doupe  v.'Genin,  1  Sweeny  (N.  Y.  S.  C.),  25,  30,  obiter. 
'Cassada  v.  Stabel,  90  N.  Y.  Supp.  533;  98  App.  Div.  600;  Bennett  v.  Bittle, 
4  Rawle  (Pa.),  339;  A  very  v.  Dougherty,  102  Ind.  443;  2  N.  E.  Rep.  123; 
Slayback  v.  Jones,  9  Ind.  470,  semble.  Hayner  v.  Smith,  03  111.  430;  14  Am. 
Rep.  124.  IJurtlett  v.  Farrington,  120  Mass.  284. 

"Codrington  v.  Denham,  35  N".  Y.  Super.  Ct.  412.  Moore  v.  Weber,  71  Pa. 
St.  429;  10  Am.  Rep.  708.  A  covenant  for  quiet  enjoyment  is  not  broken  by 
Ihe  refusal  of  the  lessor  to  shore  up  the  walls  of  the  leased  premises  to  pre- 
A-ent  them  from  falling  while  an  adjoining  building  is  being  removed,  by 
reason  of  which  refusal  the  premises  are  rendered  uninhabitable.  Such  re- 
fusal would  be  a  breach  only  of  a  covenant  of  seisin.  Howard  v.  Doolittle, 
3  Duer  (N.  Y.),  464;  Johnson  v.  Oppenheim,  34  N.  Y.  Super.  Ct.  416. 

"Ante,  p.  336.    KENT,  C.  J.,  in  Folliard  v.  Wallace,  2  Johns.   (N.  Y.)   395. 

"Chaplain  v.  Southgate,  10  Mod.  383. 

10 2  Sugd.  Vend.  (8th  Am.  ed.)  271  (600)  ;  Rawle  Covts.  f5th  ed.)  §  128, 
pi.  2.  Nash  v.  Palmer,  5  Maule  &  S.  374,  the  court  saying:  "The  covenantor 
is  presumed  to  know  the  person  against;  whose  acts  he  is  content  to  covenant, 
and  may,  therefore,  reasonably  be  expected  to  stipulate  against  any  distur- 
bance from  him,  whether  from  Inwful  title  or  otherwise.  If  the  warranty  be 
against  the  claim  of  a  particular  person,  and  the  covenantee  be  evicted  by 
that  person,  it  is  not  necessary,  in  an  action  for  the  breach,  to  aver  an 
eviction  by  title  paramount.  Patton  v.  Kennedy,  1  Marsh  (Ky.)  389;  10 
Am.  Dec.  744;  Pence  v.  Duval,  9  B.  Mon.  (Ky.)  49.  But  see  Gleason  v. 

23 


354  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

§  143.  Eminent  domain  and  acts  of  sovereignty.  The  cove- 
nants of  warranty  and  for  quiet  enjoyment  do  not  embrace  acts  of 
sovereignty,21  such,  for  example,  as  the  exercise  of  the  right  of  emi- 
nent domain.22  The  organic  law  of  each  State  provides  that  pri- 
vate property  shall  not  be  taken  for  public  purposes  without  com- 
pensation, and  the  covenantee  is  protected  by  provisions  for  the  in- 
demnity of  the  owners  of  the  appropriated  lands  made  in  pursuance 

Smith,  41  Vt.  293,  where  it  was  said  that  a  covenant  against  the  claims  of 
persons  named  is  a  covenant  against  their  valid  claims,  and  not  against  aucli 
claims  as  they  make  without  legal  foundation  or  right. 

"  Philips  v.  Evans,  38  Mo.  305,  a  case  in  which  it  was  held  that  govern- 
mental emancipation  of  a  slave,  who  had  been  sold  with  warranty,  was  no 
breach  of  the  warranty.  Osborn  v.  Nicholson,  13  Wall.  (S.  C.)  655.  Dyer 
v.  Wightman  (Legal  Tender  Cases),  12  Wall.  (U.  S.)  549.  In  Cooper  v. 
Bloodgood,  32  N.  J.  Eq.  209  (1880),  it  was  questioned  whether  a  riparian 
owner,  conveying  premises  including  land  between  high  and  low-water  mark, 
would,  in  the  absence  of  an  express  warranty  to  that  effect,  be  held  by  the 
usual  covenants  to  have  warranted  against  the  notorious,  sovereign  title  of 
the  State  to  such  lands  under  water.  See  Barre  v.  Flemings,  29  W.  Va.  314; 
1  S.  E.  Rep.  731,  where  it  was  held  that  a  covenant  of  warranty  in  a  convey- 
ance of  premises  extending  to  "  low-water  mark  "  was  not  broken  by  the  fact 
that  the  public  had  an  easement  therein,  and  that  the  public  authorities  had 
enjoined  the  covenantee  from  building  a  wharf  below  high-water  mark.  The 
lessor  of  a  market  stall  is  not  liable  in  damages  to  the  lessee  for  an  eviction 
under  a  municipal  authority.  Barrere  v.  Bartet,  23  La.  Ann.  722. 

"  Ellis  v.  W7elch,  6  Mass.  246 ;  4  Am.  Dec.  122,  leading  case ;  Bumnier  v. 
Boston,  102  Mass.  19;  Boston  Steamboat  Co.  v.  Manson,  117  Mass.  34,  semble* 
Patterson  v.  Arthur,  9  Watts  (Pa.),  152;  Bellinger  v.  Society,  10  Pa.  St. 
135;  Dobbins  v.  Brown,  12  Pa.  St.  75,  distinguished  in  Peters  v.  Grubb,  21 
Pa.  St.  455;  Workman  v.  Mifflin,  30  Pa.  St.  362;  Bailey  v.  Miltenberger,  31 
Pa.  St.  37;  Schuylkill,  etc.,  R.  Co.  v.  Schmoerle,  57  Pa.  St.  271.  See,  also, 
Maule  v.  Ashmead,  20  Pa.  St.  483;  Ross  v.  Dysart,  33  Pa.  St.  452.  Cooper 
v.  Bloodgood,  32  N.  J.  Eq.  209.  See  elaborate  note  to  this  case.  Knhn  v» 
Freeman,  15  Kans.  423;  Gummon  v.  Blaisdell,  45  Kans.  221;  25  Pac.  Rep. 
580.  Stevenson  v.  Loehr,  57  111.  509;  11  Am.  Rep.  36.  Dobbins  v.  Brown, 
12  Pa.  St.  79,  where  it  was  said  by  GIBSON,  C.  J.:  "It  will  scarcely  be 
thought  that  a  covenant  of  warranty  extends  to  an  entry  by  the  authority 
of  the  State  in  the  exercise  of  its  eminent  domain.  Like  any  other  covenant, 
it  must  be  restrained  to  what  was  supposed  to  be  the  matter  in  view;  and 
no  grantor  who  warrants  the  possession  dreams  that  he  covenants  against 
the  entiy  of  the  State  to  make  a  railroad  or  a  canal ;  nor  can  it  be  a  sound 
interpretation  of  the  contract  that  would  make  him  liable  for  it.  An  explicit 
covenant  against  all  the  world  would  bind  him;  but  the  law  is  not  so  un- 
reasonable as  to  imply  it.  The  entry  of  the  public  agents,  and  the  occupancy 
of  the  ground,  were  not  a  breach  of  the  warranty." 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       355 

of  this  law.23  When  the  parties  enter  into  covenants  for  title  it 
will  be  presumed  that  they  had  in  view  only  existing  rights  under 
a  paramount  title,  and  the  power  of  the  State  to  appropriate  the 
premises  for  public  uses  cannot  be  regarded  as  such  a  right.24  In 
one  case  it  was  held  that  the  covenant  of  warranty  was  not  broken 
by  condemnation  of  the  premises  to  public  uses,  though  the  cove- 
nantor had,  before  the  execution  of  the  deed,  released  all  claim  to 
damages.25  The  purchaser  must  also  take  notice  of  public  statutes 
restricting  the  use  of  the  granted  premises ;  and  such  restrictions 
constitute  no  breach  of  the  covenant  of  warranty.26  Upon  a  some- 
what similar  principle,  it  has  been  held  that  the  covenant  does  not 
extend  to  the  acts  of  a  newly  formed  State  in  restricting  the  owner- 
ship of  shore  proprietors  to  the  line  of  ordinary  high  tide,  the 
warranty  having  been  made  before  the  formation  of  the  State 
when  the  owner,  under  the  territorial  government,  was  permitted 
to  extend  his  structures  out  to  navigable  depth.27 

§  144.  Eviction.  General  rule.  The  covenant  of  warranty  is  a 
covenant  against  eviction  only.  It  is  not  a  covenant  that  the  estate 
conveyed  is  indefeasible.  Except  in  those  States  in  which  the  law 
in  express  terms  gives  to  a  warranty  the  effect  of  a  covenant  of 
seisin,  a  general  covenant  of  warranty  in  a  deed  does  not  imply  a 
covenant  of  seisin,  and,  therefore,  is  not  broken  by  the  existence 
of  a  better  title  in  a  stranger.  No  rule  or  principle  of  the  law  of 

"Frost  v.  Earnest,  4  Whart.  (Pa.)  86.  Ellis  v.  Welch,  6  Mass.  246;  4 
Am.  Dec.  122.  Folts  v.  Huntley,  7  Wend.  (N.  Y.)  210. 

14  Ellis  v.  Welch,  6  Mass.  246 ;  4  Am.  Dec.  122.  Frost  v.  Earnest,  4  Whart. 
(Pa.)  86. 

"Dobbins  v.  Brown,  12  Pa.  St.  75.  This  is  a  doubtful  case.  The  release 
was  executed  in  1829.  The  conveyance  with  warranty  was  made  in  1839. 
The  actual  appropriation  of  the  premises  to  public  use  took  place  in  1840. 
Regarding  the  release  as  a  conveyance  of  an  interest  in  the  estate,  there  was 
no  exercise  of  the  right  of  eminent  domain,  and  the  appropriation  of  the 
premises  was  tantamount  to  an  eviction  under  a  prior  title  derived  from  the 
grantor.  Such  a  case  obviously  stands  upon  different  ground  from  one  in 
which  the  covenantee  has  recourse  upon  the  appropriator  for  indemnity.  In 
Stevenson  v.  Loehr,  57  111.  509;  11  Am.  Rep.  36,  it  was  held  that  if  the 
condemnation  transpired  after  the  sale  but  before  the  conveyance,  the  vendor 
would  hold  the  damages  in  trust  for  the  vendee,  and  would  be  accountable 
therefor. 

MNeeson  v.  Bray,  19  N.  Y.  Supp.  841. 

"Feurer  v.  Stewart,  83  Fed.  Rep.  793. 


356  MARKETABLE    TITLE    TO    REAL    ESTATE. 

warranty  has  been  more  frequently  declared  than  this.28    Xor  does 
the  covenant  of  warranty,  independently  of  statute,  include  a  cove- 

-8Kent  Cora/472;  2  Lorn.  Dig.  762;  Rawle  Covts.  (5th  ed.)  §  131.  Barlow 
v.  Delaney,  40  Fed.  Rep.  97,  Northern  Pac.  R.  Co.  v.  Montgomery,  86  Fed. 
Rep.  251.  Caldwell  v.  Kirkpatrick,  6  Ala.  62;  41  Am.  Dec.  36.  Oliver  T. 
Bush,  125  Ala.  534;  27  So.  Rep.  923.  Beebe  v.  Swartwout,  3  Gil.  (111.)  180; 
Moore  v.  Vail,  17  111.  185;  Owen  v.  Thomas,  33  111.  320;  Bostwick  v. 
Williams,  36  111.  65;  85  Am.  Dec.  385.  Wilson  v.  Irish,  62  Iowa,  260;  S.  C., 
57  Iowa,  184.  Emerson  v.  Minot,  1  Mass.  464;  Lothrop  v.  Snell,  11  Cuah. 
(Mass.)  453.  Wilty  v.  Hightower,  12  Sm.  &  M.  (Miss.)  478.  Troxell  T. 
Johnson,  52  Neb.  46;  71  N.  W.  Rep.  968;  Troxell  v.  Stevens,  57  Neb.  329; 
77  N.  W.  Rep.  781;  Merrill  v.  Suing,  66  Neb.  404;  92  N.  W.  Rep.  618.  Kent 
v.  Welch,  7  Johns.  (N.  Y.)  258;  5  Am.  Dec.  266,  leading  case;  Vanderkarr 
v.  Vanderkarr,  11  Johns.  (N.  Y.)  122;  Kelly  v.  Dutch  Church,  2  Hill 
(N.  Y.),  105;  Greenvault  v.  Davis,  4  Hill  (N.  Y.),  643;  Fowler  v.  Poling,  C 
Barb.  (N.  Y.)  165;  Blydenburg  v.  Cotheal,  1  Duer  (N.  Y.),  195.  Inderlied  T. 
Honeywell,  84  N.  Y.  Supp.  333;  88  App.  Div.  14'4.  Bender  v.  Fromberger, 
4  Dall.  (Pa.)  436;  Clarke  v.  McAnulty,  3  S.  <fe  R.  (Pa.)  364;  Patton  T. 
jlcParlane,  3  P.  &  W.  (Pa.)  422;  Dobbins  v.  Brown,  12  Pa.  St.  75;  Stewart 
v.  West,  14  Pa.  St.  336.  Allison  v.  Allison,  1  Yerg.  (Tenn.)  16;  Ferris  r. 
Harshea,  Mart.  &  Yerg.  (Tenn.)  54;  17  Am.  Dec.  782;  Stuart  v.  Nelson,  4 
Hayw.  (Tenn.)  200;  Crutcher  v.  Stunjp,  5  Hayw.  (Tenn.)  100;  Young  T. 
Butler,  1  Head  (Tenn.)  648.  Contra,  Talbot  v.  Bedford,  Cooke  (Tenn.)  447. 
Findlay  T.  Toncray,  2  Rob.  (Va.)  374,  379;  Marbury  v.  Thornton,  82  Va. 
374;  1  8.  E.  Rep.  909;  Jones  v.  Richmond,  (Va.)  13  S.  E.  Rep.  414.  Osburm 
v.  Pritehard,  104  Ga.  145;  30  S.  E.  Rep.  656;  Bedell  v.  Christy,  62  Kan.  760; 
64  Pa6.  Rep.  629.  In  Clarke  v.  McAnulty,  3  Serg.  &  R.  (Pa.)  364,  it  was 
said  fcy  GIBSON,  J. :  "  The  covenant  of  warranty  protects  only  against  a* 
ouster  from  the  possession,  and  there  can,  therefore,  be  no  breach  of  it 
assigned  without  alleging  an  actual  eviction.  It  is  true  that  evidence  of  a 
paramount  title  in  a  stranger,  and  that  the  warrantee  in  consequence  yielded 
up  the  possession,  will  support  such  an  allegation,  for  the  law  does  not 
require  the  idle  and  expensive  ceremony  of  being  turned  out  by  legal  process 
when  that  result  would  be  inevitable.  It  is  unnecessary  to  cite  cases  to 
this  point,  the  difference  between  a  covenant  of  warranty  and  of  seisin  being 
recognized  as  existing  in  England  and  our  sister  States."  An  apparent 
exception  to  the  rule  stated  in  the  text  will  be  found  in  Daggett  v.  Reas,  70 
Wis.  60;  48  X.  W.  Rep.  127,  where  it  was  held  that  a  covenant  of  warranty 
was  broken  by  an  oustanding  tax  title  in  a  stranger.  This,  however,  was 
upon  the  ground  that  recording  the  tax  deed  constructively  vested  the  pos- 
session in  the  tax  purchaser.  In  South  Carolina,  the  courts,  following  the 
civil  law,  have  held  in  a  number  of  cases  that  an  eviction  is  not  necessary  to 
a  breach  of  the  covenant  of  warranty,  and  that  the  covenant  is  broken  by  a 
superior  title  outstanding  in  a  stranger.  Pringle  v.  Witten,  1  Bay  (S.  C.), 
254;  1  Am.  Dec.  612;  Bell  v.  Higgin,  1  Bay  (S.  C.),  326;  Sumter  v.  Welch, 
2  Bay  (S.  C.),  558;  Mackay  v.  Collins,  2  Nott  &  McC.  (S.  C.)  186;  10  Am. 
Dec.  586;  Moore  v.  Lanham,  3  Hill  L.  (S.  C.)  304;  Mitchell  v.  Vaughan,  2 
Brev.  L.  (S.  C.)  100.  But  see  Jeter  v.  Glenn,  9  Rich.  L.  (S.  C.)  377,  and, 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       357 

nant  against  incumbrances,29  though  of  course  it  is  broken  as  well 
by  an  eviction  under  an  incumbrance  as  by  the  enforcement  of  the 
rights  of  one  having  the  better  title.30  The  statute  of  limitations 
does  not  run  upon  a  covenant  of  warranty  until  there  has  been  an 
eviction.31  For  the  purpose  of  this  rule,  a  decree  of  court,  in  a 
suit  to  which  the  covenantee  was  a  party,  declaring  title  to  be  in  a 
third  person  was  treated  as  an  eviction.32  An  action  upon  a  cove- 
nant of  warranty  is  an  action  upon  a  specialty,  and  governed  by 
the  statute  of  limitations  applicable  to  specialties.33  It  has  been 
held  that  an  action  may  be  maintained  before  eviction  on  a  bond 
"  to  indemnify  and  make  the  vendee  safe  and  secure  in  the  title."3 
Such  a  bond  imposes  a  greater  obligation  than  a  covenant  of  seisin, 
or  for  quite  enjoyment,  and,  it  has  been  intimated,  is  not  merged 
or  extinguished  by  the  acceptance  of  a  deed.35 

post,  §  190.  The  same  rule  existed  in  Texas,  with  this  qualification,  namely, 
that  the  purchaser  must  have  bought  without  notice  of  the  outstanding  title. 
Doyle  v.  Hord,  67  Tex.  662 ;  4  S.  W.  Rep.  241 ;  Groesbeck  v.  Harris,  82  Tex. 
411;  19  S.  W.  Rep.  850;  since  overruled  in  Land  Co.  v.  North,  92  Tex.  72;  45 
S.  W.  904.  See,  also,  Huff  v.  Reilly,  (Tex.  Civ.  App.)  64  S.  W.  387.  In 
Pence  v.  Gabbert,  63  Mo.  App.  302,  it  was  held  that  the  covenantee,  who  had 
not  been  actually  evicted,  could  not  recover  substantial  damages  though  judg- 
mene  establishing  a  paramount  title  to  an  undivided  half  of  the  property, 
and  also  a  judgment  for  mesne  profits,  had  been  recovered  against  him,  and 
he  had  paid  the  latter  judgment. 

MLeddy  v.  Enos,  (Wash.)  33  Pao.  Rep.  508.  Boreel  v.  Lawton,  90  N.  Y. 
293;  Hebler  v.  Brown,  41  N.  Y.  Supp.  441. 

••Jackson  v.  McCauley,  13  Wash.  298;  43  Pac.  41. 

"Crisfield  v.  Storrs,  36  Md.  129;  11  Am.  Rep.  480;  N.  Pac.  R.  Co.  v.  Mont- 
gomery, 86  Fed.  251;  Foshay  v.  Shafer,  116  Iowa,  302;  89  N.  W.  Rep.  1106; 
Wiggins  v.  Pender,  132  N.  C.  628;  44  S.  E.  Rep.  362;  Shankle  v.  Ingram,  133 
N.  C.  254 ;  45  S.  E.  578.  Chenault  v.  Thomas,  26  Ky.  Law  R.  1029 ;  83  S.  W. 
Rep.  109.  Cheney  v.  Straube,  35  Neb.  521 ;  53  N.  W.  Rep.  479.  In  Texas, 
it  seems  that  the  statute  is  held  to  run  on  a  covenant  of  warranty  from 
the  time  of  institution  of  a  suit  by  an  adverse  claimant  to  recover  the  land, 
regardless  of  the  precise  time  of  the  eviction.  Alvord  v.  Waggoner,  (Tex. 
Civ.  App.)  29  S.  W.  Rep.  797.  Where  a  remote  grantee  was  evicted  upon 
disaffirmance  of  the  conveyance  to  the  original  grantee  by  a  minor,  the 
statute  did  not  begin  to  run  until  such  disaffirmance  and  judgment  against 
the  defendant  in  a  suit  by  the  sometime  minor  to  quiet  his  title.  Pritchett 
v.  Redick,  62  Neb.  296;  86  N.  W.  Rep.  1097. 

"Foshay  T.  Shafer,  116  Iowa,  302;   89  N.  W.  Rep.  1106. 

"Kern  T.  Kloke,  21  Neb.  529;  32  N.  W.  Rep.  574. 

"Anderson  v.  Washabaugh,  43  Pa.  St.  118. 

"Rawle  Covts.   (5th  ed.)   289,  note  2.     See  post,  §  269. 


358  MABKETABLE    TITLE    TO    REAL    ESTATE. 

The  rule  that  the  covenant  of  warranty  is  not  broken  by  the 
existence  of  a  superior  outstanding  title  in  another  where  there 
has  been  no  actual  eviction,  has  been  held  not  to  apply  where  the 
outstanding  title  is  in  the  State.36 

§  145.  Entry  by  adverse  claimant.  Legal  process.  Eviction  of 
a  grantee  of  lands,  with  warranty,  is  of  two  kinds,  actual  and  con- 
structive. Actual  eviction  is  an  amotion  or  expulsion  of  the  grantee 
from  the  warranted  estate,  either  by  a  peaceable  entry  and  dis- 
seisin on  the  part  of  him  who  has  the  superior  title,37  of  by  the  of- 
ficers of  the  law  in  pursuance  of  process  issued  on  a  judgment  or 
decree,  establishing  the  title  of  an  adverse  claimant.  In  a  few  early 
cases  it  has  been  held  that  to  constitute  an  eviction,  the  right  of  the 
evictor  must  have  been  established  by  judicial  decision,  and  the 
covenantee  expelled  from  the  premises  by  possessory  process.38 
But  the  weight  of  authority  establishes  the  rule  that  a  lawful  ex- 
pulsion of  the  covenantee  from  the  premises  by  one  having  a  better 
right,  operates  a  breach  of  the  covenant  of  warranty,  whether  the 
expulsion  was  or  was  not  in  pursuance  of  judicial  sanction.39  An 
eviction  or  ouster  in  pais  must,  of  course,  be  established  by  parol 
evidence.40  But  if  there  has  been  an  actual  eviction  in  pursuance 
of  a  judgment  in  ejectment  against  the  covenantee,  the  record 
thereof  will  be  the  only  proper  evidence  of  the  fact.41 

**Kans.  Pac.  R.  Co.  v.  Dunmeyer,  19  Kan.  543;  Brown  v.  Allen,  10  N.  Y. 
Supp.  714;  McGary  v.  Hastings,  39  Cal.  360;  2  Am.  Rep.  456.  This  exception 
does  not  apply  where  the  grantee  is  in  possession  under  title  derived  through 
a  defective  railroad  grant  of  public  lands,  and  has  taken  steps  to  perfect  his 
title  as  a  bona  fide  purchaser  by  procuring  a  patent  from  the  government, 
under  an  act  passed  for  the  relief  of  such  purchasers.  Burr  v.  Greeley,  52 
Fed.  Rep.  926. 

"As  in  Hodges  v.  Latham,  98  N.  C.  239;  3  S.  C.  Rep.  495.  Here  the 
covenantee  left  the  premises  for  a  short  time,  and  upon  his  return  found 
them  in  the  possession  of  one  claiming  under  a  paramount  title. 

38  Stewart  v.  Drake,  4  Halst.  (N.  J.  L.)  141.  Lansing  v.  Van  Alsytne,  2 
Wend.  (N.  Y.)  563,  obiter;  Hunt  v.  Amidon,  4  Hill  (X.  Y.)  345;  40  Am. 
Dec.  283,  obiter. 

"Booker  v.  Bell,  3  Bibb  (Ky.),  173;  6  Am.  Dec.  641.  Fowler  v.  Poling,  6 
Barb.  (N.  Y.)  165.  See,  also,  case  cited  post,  "Constructive  Eviction," 
§  146.  A  decree  in  equity,  by  which  the  covenantee  loses  the  land,  is  equiva- 
lent to  eviction  by  process  of  law.  Martin  v.  Martin,  1  Dev.  (N.  C.)  L.  413. 

"Booker  v.  Bell,  3  Bibb  (Ky.),  173}  6  Am.  Dec.  641.  Randolph  v.  Meeks, 
Mart.  &  Yerg.  (Tenn.)  58. 

"Booker  v.  Bell,  3  Bibb   (Ky.),  173;  6  Am.  Dec.  641. 


359 

An  entry  by  a  mortgagee  upon  demised  premises  for  condition 
broken  and  a  threat  to  expel  the  lessee  unless  he  will  attorn  to  him 
(the  mortgagee)  amounts  to  an  eviction  under  a  statute  giving  the 
mortgagee  a  right  to  enter  for  condition  broken.42  And  a  delivery 
of  seisin  by  the  sheriff  to  a  judgment  creditor  of  the  grantor  in 
satisfaction  of  an  execution  on  the  judgment  is  an  eviction  and 
breach  of  the  covenant  of  warranty.43 

Of  course  there  will  be  no  breach  of  the  covenant  of  warranty  if 
the  grantee  be  evicted  under  an  incumbrance  which  he  assumed  to 
pay  as  part  of  the  purchase  price,  even  though,  by  reason  of  some 
defect  in  the  title,  the  grantee  was  unable  to  effect  a  loan  on  the 
warranted  premises  with  which  to  discharge  the  incumbrance.44  An 
assignment  of  dower  by  metes  and  bounds  in  the  warranted  prem- 
ises and  the  placing  of  the  widow  in  possession  is,  of  coarse,  an 
eviction  and  breach  of  the  covenant  of  warranty.45  It  has  even 
been  held  that  a  conveyance  of  lands  which  were  at  the  time  sub- 
ject to  dower  was  a  breach  of  this  covenant.46  The  eviction  of  a 
covenantee  by  foreclosure  sale  under  a  mortgage  is  a  breach  of  a 
covenant  of  warranty  though  the  judgment  of  foreclosure  be  after- 
wards reversed,  since  the  reversal  does  not  affect  the  title  or  pos- 
session of  the  purchaser.47 

The  term  "  eviction  "  does  not  mean,  in  all  cases  an  absolute 
expulsion  of  the  covenantee  from  the  land.  The  existence  and 

"Tuft  v.  Adams,  8  Pick.  (Mass.)  547;  Smith  v.  Shepard,  15  Pick.  (Mass.) 
147;  25  Am.  Dec.  432;  White  v.  Whitney,  3  Met.  (Mass.)  81.  The  recording 
of  a  certificate  of  entry  by  a  mortgagee  for  condition  broken  shows  a  breach 
of  the  covenant  of  warranty.  Furnas  v.  Durgin,  119  Mass.  500;  20  Am.  Rep. 
341.  In  Collier  v.  Cowger,  52  Ark.  322;  12  S.  W.  Rep.  702,  it  was  held  that 
a  judgment  foreclosing  a  prior  mortgage  on  the  land  in  the  possession  of  the 
mortgagee  was  a  constructive  eviction.  In  Kidder  v.  Bork,  33  N.  Y.  Supp. 
663,  it  was  held  that  a  mere  allegation  of  a  "  decision  "  establishing  a  lien  on 
the  warranted  premises  was  not  sufficient  as  an  allegation  of  a  judgment  or 
eviction.  It  seems  to  have  been  assumed  in  this  case  that  a  judgment  estab- 
lishing the  lien  would  have  been  equivalent  to  an  eviction. 

4*Gore  v.  Brazier,  3  Mass.  523;  3  Am.  Dec.  182;  Wyman  v.  Brigden,  4  Mass. 
150;  Bigelow  v.  Jones,  4  Mass.  512;  Barrett  v.  Porter,  14  Mass.  143. 

"Lamb  v.  Baker,   (Neb.)   52  N.  W.  Rep.  285. 

45  Johnson  v.  Nyce,  17  Ohio,  66;  49  Am.  Dec.  444.  Davis  v.  Logan,  5  B. 
Mon.  (Ky.)  341.  Lewis  v.  Lewis,  4  Rich.  L.  (S.  C.)  12. 

"Blanchard  v.  Blanchard,  48  Me.  174. 

47  Smith  v.  Dixon,  27  Ohio  St.  471. 


360  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

exercise  of  a  private  right  of  way  over  the  premises,  have  been 
held  an  eviction  of  the  grantee,  and,  consequently,  a  breach  of 
the  covenant  of  warranty  and  for  quiet  enjoyment.48 

§  146.  •  Constructive  eviction.  Inability  to  get  possession.  A 
constructive  eviction  of  a  grantee,  with  warranty,  occurs  ( 1 )  Where 
the  premises  are  in  the  adverse  possession  of  one  holding  under  a 
superior  title,  and  (2)  Where  the  grantee  surrenders  the  possession 
to  one  having  a  better  title,  in  order  to  avoid  an  inevitable  expul- 
sion from  the  premises.  Without  the*  one  or  the  other  of  these 
conditions  there  cannot  be  a  constructive  eviction.49  Where,  at  the 
time  of  a  conveyance,  the  grantee  finds  the  land  in  the  possession  of 
one  claiming  under  a  paramount  title,  the  covenant  of  warranty  or 
for  quiet  enjoyment  will  be  held  to  be  broken,  without  any  other 
act  on  the  part  of  either  the  grantee  01  the  claimant.  The  claimant 
can  do  no  more  towards  the  assertion  of  his  title  than  to  hold  pos- 
session, and  as  to  the  covenantee,  the  law  will  not  compel  him  to 
commit  a  trespass  in  order  to  establish  a  lawful  right  in  another 
action.60 

"Rea  v.  Minkler,  5  Lans.  (N.  Y.)  196;  Eller  v.  Moore,  63  N.  Y.  Supp.  88; 
48  App.  Div.  403. 

"Boreel  v.  Lawton,  90  N.  Y.  293;  43  Am.  Rep.  170;  Mead  v.  Stackpole,  4O 
Hun  (N.  Y.),  473. 

"•Platt  Covts.  327;  2  Lorn.  Dig.  269;  Rawle  Covts.  (5th  ed.)  §  138.  Clark 
v.  Harper,  6  Vin.  427;  Hacket  v.  Glover,  10  Mod.  143;  Ludwell  v.  Newman, 

6  Term  Rep.  453.     Duval  v.  Craig,  2  Wh.   (U.  S.)   45.     Banks  v.  Whitehead, 

7  Ala.  83;  Crawford  v.  Pendleton,  cited  7  Ala.  84.     Prestwood  v.  McGowan, 
128  Ala.  267;  29  So.  Rep.  386;  McMullan  v.  Butler,   117  Ga.  845;  45  S.  E. 
Rep.  258.    Moore  v.  Vail,  17  111.  185.     Small  v.  Rives,  14  Ind.  164.     Barnett 
v.  Montgomery,  6  T.  B.  Mon.    (Ky.)    328.     Curtis  v.  Deering,   12   Me.  499. 
Fritz  v.  Pusey,  31  Minn.  368.     Wilty  v.  Hightower,  12  Smed.  &  M.    (Miss.) 
478.      Murphy    v.    Price,   48   Mo.   247;    Blondeau   v.    Sheridan,    81    Mo.    545. 
Rickets  v.  Dickens,  1  Murph.  (N.  C.)  343.    Shankle  v.  Ingram,  133  N.  C.  254; 
45  S.  E.  Rep.  578.     Wetzel  v.  Richcreek,   (Ohio)   40  N.  E.  Rep.  1004.     Ran- 
dolph  v.   Meek,   Mart.   &   Yerg.    (Tenn.)    524;    Bradley  v.   Dibrell,   3   Heisk. 

(Tenn.)  524.  Park  v.  Bates,  12  Vt.  381;  36  Am.  Dec.  347;  Pitkin  T. 
Leavitt,  13  Vt.  379;  Brown  v.  Taylor,  13  Vt.  631;  37  Am.  Dec.  618;  Clark  T. 
Conroe,  38  Vt.  469;  University  v.  Joslyn,  21  Vt.  52;  Smith  v.  Scribner,  59 
Vt.  96;  7  Atl.  Rep.  711.  Sheffey  v.  Gardener,  79  Va.  313.  Rex  v.  Creel,  22  W. 
Va.  373.  McConaughay  v.  Bennett,  50  W.  Va.  172;  40  S.  E.  Rep.  540.  Shat- 
tuck  v.  Lamb,  65  N.  Y.  499;  22  Am.  Rep.  656,  citing  dicta  from  Withers 
v.  Powers,  2  Sandf.  Ch.  (N.  Y.)  350,  and  Winslow  v.  McCall,  32  Barb. 
(N.  Y.)  241.  See,  also,  Gardner  v.  Keteltas,  3  Hill  (N.  Y.),  332;  38  Am. 
Dec.  637;  Grannis  v.  Clark,  8  Cow.  (N.  Y.)  36.  At  one  time  a  contrary 


COVENANTS    OF    WAEBANTY    AND    FOB    QUIET    ENJOYMENT.       361 

But  an  adverse  possession  in  a  stranger  will  not  amount  to  a 
breach  of  warranty  unless  he  holds  under  a  title  superior  to  that  of 
the  covenantee.51  An  inchoate  possessory  title,  which  may  ripen 
into  a  perfect  title  under  the  statute  of  limitations,  will  not  amount 
to  a  constructive  eviction.  The  covenant  of  warranty  is,  as  we 
have  seen,  against  the  claims  only  of  those  who  have  lawful  right. 
The  covenantee  must  show  that  he  was  in  fact  unable  to  get  pos- 
session from  one  holding  under  color  of  title.  The  mere  occu- 
pancy of  the  premises  by  a  stranger  without  showing  under  whom 
he  claims,  nor  what  efforts  had  been  hade  to  obtain  possession  from 
him,  is  insufficient.52  And  if  the  covenantee,  by  his  own  laches, 
suffer  an  imperfect  and  inferior  title  in  one  occupying  the  land 
adversely  to  ripen  into  a  perfect  title  under  the  statute,  he  cannot 
recover  on  the  warranty.53  It  is  not  necessary  to  constitute  a  breach 
of  warranty  that  the  person  in  possession  shall  hold  under  a  title  in 
fee  simple.  The  covenant  of  warranty  goes  to  the  possession  as 

doctrine  prevailed  in  the  State  of  New  York.  Kortz  v.  Carpenter,  5  Johns. 
(N.  Y.)  120;  St.  John  v.  Palmer,  5  Hill  (N.  Y.),  601.  But  the  rule  there  now 
is  that  stated  in  the  text.  Shattuck  v.  Lamb,  supra.  Where  land  conveyed 
wag  described  as  bounded  "  by  land  of  M.,  by  a  line  through  the  center  of  the 
wall,"  and  the  wall  was  wholly  on  M.'s  land,  it  was  held  that  the  covenant  or 
warranty  was  broken.  Cecconi  v.  Rodden,  147  Mass.  164;  16  N.  E.  Rep.  749. 
As  to  whether  party  wall  is  a  breach  of  covenant  against  incumb'ranccs,  see 
ante,  p.  296.  Ejectment  brought  by  the  covenantee  against  the  adverse  claim- 
ant, and  a  successful  defense  by  the  latter,  will  give  the  covenantee  the  same 
right  to  an  action  on  the  warranty  that  an  eviction  would.  Cummins  v. 
Kennedy,  3  Litt.  (Ky.)  118;  14  Am.  Dec.  45.  But  the  fact  that  a  suit  to 
establish  title  to  leased  premises,  in  which  the  lessor  is  plaintiff,  is  decided 
adversely  to  him,  is  no  breach  of  a  covenant  for  quiet  enjoyment,  there  being 
no  disturbance  of  the  lessee's  possession.  Hayes  v.  Ferguson,  15  Lea  {Tenn.), 
1 ;  54  Am.  Dec.  398.  For  dicta  or  intimations  contrary  to  the  rule  stated  in 
the  text,  see  Holder  v.  Taylor,  Hob.  12,  and  Day  v.  Chism,  10  Wh.  (U.  S.) 
452,  and  the  early  New  York  cases,  cited  supra,  this  section. 

"Noonan  v.  Lee,  2  Bl.  (U.  S.)  499,  507.  Phelps  v.  Sawyer,  1  Aik.  (Vt.) 
157.  Playter  v.  Cunningham,  21  Cal.  232,  a  case  in  which  a  lessee  of  the  prop- 
erty refused  to  give  up  the  possession  at  the  expiration  of  his  term.  It 
devolved  upon  the  covenantee  to  eject  him. 

"Barry  v.  Guild,  126  111.  439;  18  N.  E.  Rep.  759.  In  this  case  there  was  a 
derrick  and  tool  house  on  the  premises  which  were  occupied  by  a  stone  com- 
pany, but  it  did  not  appear  that  the  company  laid  any  claim  to  the  land  or 
that  the  plaintiff  had  made  any  effort  to  get  possession  and  judgment  was 
rendered  for  the  defendant. 

"Rindskop  v.  Trust  Co.,  58  Barb.    (N.  Y.)   49. 


362  MARKETABLE    TITLE    TO    REAL    ESTATE. 

well  as  to  the  title.  Therefore,  if  a  stranger  be  in  possession  of  the 
premises,  holding  as  tenant  for  life54  or  for  a  term  of  years,55  and 
the  grantee  is  unable  to  get  possession,  the  covenant  is  broken  and 
a  right  of  action  ensues. 

A  decree  of  court  permanently  enjoining  the  covenantee  from 
removing  any  part  of  a  party-wall  erected  partly  on  the  granted 
premises  and  partly  on  the  adjoining  premises,  as  a  protection 
against  freshets,  is  a  constructive  eviction  of  the  covenantee  from 
that  part  of  the  warranted  premises  occupied  by  the  wall.56 

§  147.  Vacant  and  unoccupied  lands.  There  is  no  opportunity 
for  an  application  of  the  doctrine  of  constructive  eviction  by  ina- 
bility to  get  possession  where  the  warranted  premises  consist  of  wild 
and  uncultivated  lands  which  are  vacant  and  unoccupied.  The 
legal  title  draws  after  it  constructive  possession  which  will  continue 
till  actual  eviction,57  and  the  grantee  may  maintain  trespass  against 
any  one  entering  on  the  land.58  If  the  title  is  defective  the  grantee 
will  have  no  right  of  action  on  the  grantor's  covenant  of  warranty 

64  Blanchard  v.  Blanchard,  48  Me.  174,  a  case  in  which  a  widow  was  entitled 
to  part  of  the  land  as  dower.  Dower  had  not,  it  seems,  been  actually  assigned 
in  this  case,  and  the  broad  proposition  was  laid  down  that  if  the  warranted 
premises  be  subject  to  dower  at  the  time  of  the  conveyance,  the  warranty  is 
broken  as  soon  as  made.  Citing  Porter  v.  Noyes,  2  Greenl.  (Me.)  26;  11  Am. 
Dec.  30,  and  Sherman  v.  Ranger,  22  Pick.  (Mass.)  447.  In  Tuite  v.  Miller,  10 
Ohio,  382,  it  was  held  that  a  decree  against  the  covenantee  to  pay  a  certain 
sum  to  a  widow  in  lieu  of  dower  was  not  a  breach  of  the  covenant  of  warranty. 
It  would  be  a  breach  of  a  covenant  against  incumbrances. 

"Reckert  v.  Snyder,  9  Wend.  (N.  Y.)  420.  Leonard  v.  Gary,  23  Ky.  Law 
R.  1325;  65  S.  W.  Rep.  124.  Anthony  v.  Rockefeller,  102  Mo.  App.  326;  aff'd 
76  S.  W.  Rep.  491,  though  the  grantee  had  knowledge  of  the  lease. 

MEnsign  v.  Colt,  75  Conn.   Ill;  52  Atl.  Rep.  829. 

"Moore  v.  Vail,  17  111.  190.  Wood  v.  Forncrook,  3  Thomp.  &  C.  (N.  Y.) 
303.  Steiner  v.  Baughman,  12  Pa.  St.  106.  Chandler  v.  Brown,  59  N.  H. 
370.  In  McLennan  v.  Prentice,  85  Wis.  427,  it  appeared  that  the  premises 
were  vacant  and  there  was  nothing  to  prevent  the  covenanter  from  taking 
possession,  except  the  occupation  of  a  part  of  the  premises  by  a  railroad  em- 
bankment used  by  the  company  in  rolling  logs  from  its  cars.  It  did  not 
appear  that  such  use  was  adverse  or  hostile  to  the  title  conveyed,  nor  that  the 
company  had  attempted  to  acquire  any  title  to  the  part  of  the  premises  so 
used.  It  was  held  that  the  facts  stated  did  not  amount  to  a  constructive 
eviction  of  the  covenantee. 

58  Jackson  v.  Sellick,  8  Johns.  (N.  Y.)  262;  Van  Rensselaer  v.  Van  Rens- 
selaer,  9  Johns.  (N.  Y.)  377.  Mather  v.  Tremty,  3  S.  &  R.  (Pa.)  514;  8  Am. 
Dec.  663. 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.       363 

until  the  true  owner  or  some  one  claiming  under  him  has  actually 
entered  upon  and  taken  possession  of  the  premises,59  or  until  his 
rights  have  been  judicially  established  against  the  grantee.60  A 
mere  sale  of  the  premises  to  a  stranger  by  the  true  owner  will  not 
amount  to  a  constructive  eviction.61 

§  148.  Surrender  of  possession.  A  grantee  with  warranty  may 
surrender  the  possession  of  the  premises  to  a  holder  of  the  para- 
mount title,  and  this  will  be  a  constructive  eviction  and  breach  of 
the  covenant  of  warranty.  He  is  not  obliged  to  defend  himself 
against  a  title  which  he  is  satisfied  must  ultimately  prevail,62  or  to 

89  Wood  v.  Forncrook,  3  Thomp.  &  C.  (N.  Y.)  303;  St.  John  v.  Palmer,  5 
Hill,  (N.  Y.)  601.  Moore  v.  Vail,  17  111.  190.  But  see  Mclnnis  v.  Lyman,  62 
Wis.  191 ;  22  N.  W.  Rep.  405,  where  it  was  held  that  a  conveyance  of  unoc- 
cupied lands  to  which  the  grantor  had  no  title,  is  of  itself  a  constructive 
eviction  and  breach  of  warranty.  See,  also,  Koepke  v.  Winterfield,  116  Wis. 
44;  92  N.  W.  Rep.  437. 

"Allis  v.  Nininger,  25  Minn.  525,  where  it  was  held  that  a  judgment  in 
ejectment  against  a  grantee  of  unoccupied  lands  and  an  abandonment  of  all 
further  claim  to  the  premises  by  him,  constituted  a  breach  of  the  covenant  of 
warranty.  In  Williams  v.  Shaw,  N.  C.  Term  Rep.  197;  7  Am.  Dec.  106,  it 
was  held  that  a  recovery  of  damages  in  trespass  against  the  grantee  for  cut- 
ting down  timber  on  the  warranted  premises,  which  were  unoccupied,  amounted 
to  a  breach  of  the  covenant  of  warranty. 

"Hamilton  v.  Lusk,  88  Ga.  520;  15  S.  E.  Rep.  10.  Green  v.  Irving,  54 
Miss.  450;  28  Am.  Rep.  360.  Matteson  v.  Vaughn,  38  Mich.  373.  Loomis  v. 
Bedel,  11  N.  H.  74. 

"2  Wait's  Act.  &  Def.  389;  Rawle  Covts.  (5th  ed.),  §  134;  2  Greenl.  Ev., 
§  244;  7  Am.  &  Eng.  Encyc.  of  L.  36.  Dupuy  v.  Roebuck,  7  Ala.  484,  488; 
Davenport  v.  Bartlett,  9  Ala.  179;  Griffin  v.  Reynolds,  17  Ala.  198;  Gunter 
v.  Williams,  40  Ala.  572;  Heflin  v.  Phillips,  (Ala.)  11  So.  Rep.  729.  Prest- 
wood  v.  McGowan,  128  Ala.  267;  29  So.  386.  McGary  v.  Hastings,  39  Cal. 
360;  2  Am.  Rep.  456;  Booth  v.  Starr,  5%Day  (Conn.),  282;  5  Am.  Dec.  149. 
Lowery  v.  Yawn,  111  Ga.  61 ;  36  S.  E.  Rep.  294.  McMullen  v.  Butler  Co.,  117 
Ga.  845;  45  S.  E.  258.  Moore  v.  Vail,  17  111.  185;  Brady  v.  Spruck,  27  HI. 
478;  Owen  v.  Thomas,  33  111.  320;  Harding  v.  Larkin,  41  111.  422;  Claycomb 
v.  Munger,  51  111.  378.  Reasoner  v.  Edmundson,  5  Ind.  395;  Mason  v.  Cook- 
sey,  51  Ind.  519;  Axtel  v.  Chase,  83  Ind.  546;  Bever  v.  North,  107  Ind.  544; 
8  N.  E.  Rep.  576.  Funk  v.  Creswell,  5  Clarke  (Io.),  62;  Thomas  v.  Stickle,  32 
Iowa,  76.  Radcliff  v.  Ship,  Hard.  (Ky.)  279.  Hamilton  v.  Cutts,  4  Mass. 
349;  3  Am.  Dec.  222,  leading  case.  Ogden  v.  Ball,  40  Minn.  94;  41  N.  W.  Rep. 
453.  Wagner  v.  Finnegan,  65  Minn.  115;  67  N.  W.  Rep.  795.  Hall  v.  Bray, 
51  Mo.  288;  Morgan  v.  R.  Co.,  63  Mo.  129;  Ward  v.  Ashbrook,  78  Mo.  515; 
Lambert  v.  Estes,  99  Mo.  604;  13  S.  W.  Rep.  284.  Snyder  v.  Jennings,  15 
Neb.  372;  Real  v.  Hollister,  17  Neb.  661.  Drew  v.  Towle,  10  Post.  (N.  H.) 
531;  64  Am.  Dec.  309.  Greenvault  v.  Davis,  4  Hill  (N.  Y.),  643;  Fowler  v. 


364  MABKETABJLE    TITLE    TO    BEAL,    ESTATE. 

wait  until  the  true  owner  forcibly  ejects  him,  or  until  he  is  turned 
out  by  the  shoulders  under  legal  process.63  "  The  law  does  not 
require  the  idle  and  expensive  ceremony  of  being  turned  out  by 
legal  process,  when  that  result  would  be  inevitable."64  There  is  no 
reason  why  such  a  surrender  without  the  trouble  and  expense  of  a 
law  suit  should  deprive  him  of  a  remedy  on  the  covenant.  The 
grantor  is  not  injured  by  such  an  amicable  ouster.  On  the  con- 
trary, it  is  a  benefit  to  him,  for  he  thus  saves  the  expense  incurred 
by  the  grantee  in  defending  the  title.65  And  if  he  may  surrender 
the  possession  without  a  legal  contest,  a  fortiori,  may  he  yield  to 
the  true  owner  after  judgment  against  himself  in  ejectment;  the 
law  having  settled  the  title,  he  need  not  wait  for  its  officers  to 
enforce  the  sentence;  it  is  not  for  the  court  to  discourage  a  ready 
acquiescence  in  its  decisions.66  A  few  cases  may  be  found  inclining 
to  the  view  that  a  voluntary  surrender  of  the  possession  to  an 

Poling,  6  Barb.  (N.  Y.)  165;  Stone  v.  Hooker,  9  Cow.  (N.  Y.)  157;  Home 
Life  Ins.  Co.  v.  Sherman,  46  N.  Y.  373;  Hyman  v.  Boston  Chair  Manfg.  Co., 
58  N.  Y.  Super.  282;  11  N.  Y.  Supp.  52.  Parker  v.  Dunn,  2  Jones  L.  (N.  C.) 
204.  Patton  v.  McFarlane,  3  Pen.  &  W.  (Pa.)  422;  Poyntell  v.  Spencer,  6  Pa. 
St.  254;  Steiner  v.  Baughman,  12  Pa.  St.  106.  Collis  v.  Cogbill,  9  Lea 
(Tenn.),  137.  Peck  v.  Hensley,  20  Tex.  673.  In  Davenport  v.  Bartlett,  9  Ala. 
187,  the  court  said  that:  "In  Roebuck  v.  Dupuy,  7  Ala.  487,  we  intimated 
that  the  plaintiff  might  recover  in  an  action  upon  a  covenant  of  warranty, 
though  he  had  voluntarily  yielded  to  a  dispossession,  provided  the  title  to 
which  he  yielded  was  a  good  title  and  paramount  to  that  of  the  warrantor; 
and,  upon  mature  reflection  and  examination  of  the  authorities,  we  are  satis- 
fied that  such  is  the  law.  Why  should  the  vendee  be  compelled  to  involve 
himself  in  a  law  suit,  when  it  is  self  evident  he  must  be  defeated?  What 
conceivable  public  or  private  good  is  to  be  accomplished  by  such  a  course? 
None  that  we  can  conceive  of,  and  we  are,  therefore,  of  opinion  that  the  cove- 
nantee  has  the  right  to  purchase  in  the  incumbrance  or  outstanding  title,  and 
sue  the  warrantor  upon  his  covenant."  In  Allis  v,  Nininger,  25  Minn.  525, 
the  court  observed:  "Although  the  name  eviction  is  still  used  to  characterize 
the  fact  or  facts  which  are  allowed  to  constitute  a  breach  of  the  covenant, 
an  eviction  in  fact  is  no  longer  necessary;"  and,  continuing,  laid  down  this 
rule :  "  If,  at  the  date  of  the  covenant,  there  is  a  superior  title  in  a  third 
person,  whenever  that  title  is  actually  asserted  against  the  covenantee  and 
the  premises  claimed  under  it,  and  the  covenantee  is  obliged  to  yield  and 
does  yield  his  claim  to  such  superior  title,  the  covenant  to  warrant  and 
defend  is  broken.  To  such  circumstances,  we  may,  for  the  sake  of  convenience, 
apply  the  term  eviction." 

•»  Stewart  v.  West,  14  Pa.  St.  336. 

•'Clark  v.  McAnulty,  3  S.  &  R.  (Pa.)  372. 

^BBOWNSON,  J.,  in  Greenvault  v.  Davis,  4  Hill  (N.  Y.),  643. 

••Sterling  v.  Peet,  14  Conn.  254. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       365 

adverse  claimant  is  not  such  an  eviction  as  amounts  to  a  breach  of 
the  covenant  of  warranty.67  But  the  rule  as  stated  above  may  be 
regarded  as  settled  law  in  nearly  every  State  of  the  Union.  An 
attornment  by  the  covenantee  to  the  true  owner,  or  to  one  having 
the  right  to  sell  the  premises  under  a  lien  or  incumbrance,  is  a 
constructive  eviction.68 

The  surrender  of  possession  must  be  made  to  the  adverse  claim- 
ant. The  covenantee  cannot,  on  failure  of  title,  return  the  prem- 
ises to  the  covenantor  and -maintain  an  action  for  breach  of  the 
covenant  of  warranty.69 

A  mere  judgment  in  ejectment  against  the  covenantee,  unaccom- 
panied by  a  surrender  of  the  possession,  is  not  an  eviction,  and, 
therefore,  not  a  breach  of  the  covenant  of  warranty.70  In  some 
cases  it  has  been  said,  in  a  general  way,  that  a  judgment  in  eject- 
ment amounts  to  an  eviction,  but  upon  examination  it  will  be  found 
that  in  most,  if  not  all  of  the  cases,  the  covenantee  had  either 
yielded  up  the  possession  to  the  plaintiff  in  ejectment,  or  had  pur- 
chased his  rights  and  remained  in  possession  under  his  title.71  Of 

"Dennis  v.  Heath,  11  Sm.  &  M.  (Miss.)  206;  49  Am.  Dec.  51;  Heath  v. 
Newman,  11  Sm.  &  M.  (Miss.)  201.  In  Kentucky,  it  seems  that  the  covenantee 
cannot  surrender  the  possession  \o  an  adverse  claimant  and  recover  as  for  a 
breach  of  the  covenant  of  warranty,  unless  there  has  been  a  judicial  deter- 
mination of  the  superiority  of  the  adverse  claimant's  title,  even  though  the 
covenantee  can  show  that  such  title  was  in  fact  paramount.  Huff  v.  Cumber- 
land Val.  Land  Co.,  (Ky.)  30  S.  W.  Rep.  660  (not  officially  reported). 

**  Poyntell  v.  Spencer,  6  Pa.  St.  254.  An  execution  levied  on  land  under  a 
judgment  against  the  covenantor  and  seisin  and  possession  delivered  to  the 
judgment  creditor  is  an  eviction  and  a  breach  of  the  covenant  of  warranty, 
though  there  be  no  actual  amotion  of  the  covenantee  from  the  premises  by 
reason  of  his  attorning  to  the  creditor.  Gore  v.  Brazier,  3  Mass.  523 ;  3  Am. 
Dec.  182.  An  entry  upon  a  mortgaged  estate  to  foreclose  upon  breach  of  con- 
dition is,  without  actual  ouster,  an  eviction  for  which  a  warrantor  can 
recover  upon  his  covenant.  Furnas  v.  Durgin,  119  Mass.  500;  20  Am.  Rep.  341. 

"Axtel  v.  Chase,  83  Ind.  546. 

'•Clement  v.  Collins,  59  Ga.  124;  Davis  v.  Smith,  5  Ga.  274;  47  Am.  Dec. 
279;  McDowell  v.  Hunter,  Dudley  (Ga.),  4.  Dennis  v.  Heath,  11  Sm.  &  M. 
(Miss.)  206;  49  Am.  Dec.  51;  Heath  v.  Newman,  11  Sm.  &  M.  (Miss.)  201. 
Ferris  v.  Harshea,  Mart.  &  Yerg.  (Tenn.)  48;  Stipe  v.  Stipe,  2  Head  (Tenn.), 
169,  semble.  Kerr  v.  Shaw,  13  Johns.  (N.  Y.)  236.  Knepper  v.  Kurtz,  58 
Pa.  St.  480;  Paul  v.  Witman,  3  Watts  &  S.  (Pa.)  407.  Such,  also,  is  the 
rule  of  the  civil  law.  Fowler  v.  Smith,  2  Cal.  568,  citing  Pothier  Cont.  89. 

71  In  Drury  v.  Shumway,  1  D.  Chip.  (Vt.)  110;  1  Am.  Dec.  704,  it  was  held 
that  a  judgment  in  ejectment  against  the  covenantee  was  an  eviction.  The 
covenant  of  warranty  was  brok"eh  by  the  covenantor's  failing  to  defend  the 


366  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

course,  a  mere  action  of  ejectment  cannot  amount  to  a  breach  of 
the  covenant  of  warranty  until  it  results  in  an  action  or  virtual 
eviction  of  the  grantee.72  A  voluntary  abandonment  of  possession 
by  the  covenantee  after  judgment  in  ejectment  will  not  be  con- 
strued an  eviction,  unless  possession  of  the  premises  be  thereafter 
taken  by  the  plaintiff  in  ejectment.75  It  has  been  held  that  if  the 
covenant  be  to  defend  the  right  and  title  against  the  claims  of  all 
persons  a  judgment  in  ejectment  against  the  covenantee  will  amount 
to  a  breach  of  the  warranty,  though  it  has  not  resulted  in  an  actual 
ouster.74  But  a  covenantee  who  voluntarily  paid  off  such  a  judg- 
ment, pending  proceedings  by  the  covenantor  to  have  it  set  aside, 
is  not  entitled  to  recover  on  the  warranty.75  A  judgment  in  eject- 
title.  See,  also,  Chandler  v.  Brown,  59  N.  H.  370.  And  in  Woodward  v.  Allen, 
3  Dana  (Ky. ),  164,  it  was  broadly  declared  that  a  judgment  against  the  cove- 
nantee in  ejectment,  without  any  other  fact,  was  equivalent  to  eviction,  but 
in  all  these  cases  it  seems  that  the  covenantee  had  actually  attorned  to  the 
ejectment  plaintiff,  or  purchased  his  title.  But  see  Boyd  v.  Bartlett,  36  Vt. 
9,  where  the  broad  rule  that  a  recovery  in  ejectment  againsi  the  covenantee 
by  virtue  of  an  older  and  paramount  title,  was  a  breach  of  the  covenant  of 
warranty  without  actual  eviction,  was  laid  down.  So,  also,  in  King  v.  Kil- 
bride,  58  Conn.  109;  19  AtL  Eep.  519,  obiter,  and  Clark  v.  Whitehead,  47  Ga. 
516.  Such,  also,  seems  to  be  the  rule  in  Texas,  the  covenantee  being  there 
permitted,  when  sued  in  ejectment,  to  implead  the  covenantor,  and  have  judg- 
ment over  against  him,  as  in  case  of  breach  of  warranty,  if  the  adverse  claim 
be  established.  Kirby  v.  Estill,  75  Tex.  485;  12  S.  W.  Rep.  807:  Johns  v. 
Hardin,  81  Tex.  37;  16  S.  W.  Rep.  623.  In  Finton  v.  Eggleston,  61  Hun, 
(N.  Y.),  246;  16  N.  Y.  Supp.  121,  it  was  held  that  the  Statute  of  Limitations 
began  to  run  upon  a  covenant  of  warranty  as  soon  as  judgment  in  ejectment 
against  the  covenantee  was  entered,  which  necessarily  gives  to  the  judgment 
the  effect  of  an  eviction. 

"Miller  v.  Avery,  2  Barb.  Ch.  (N.  Y.)  582.  Hooker  v.  Folsom,  4  Ind.  90. 
Schuylkill  Jt  Dauphin  R,  Co.  v.  Sehmoele,  57  Pa.  St.  271.  Park  v.  Bates,  12 
Vt.  381 ;  36  Am.  Dec.  347,  in  so  far  as  it  holds  that  a  suit  commenced  by  an 
adverse  claimant  against  the  grantee  to  recover  the  possession,  is  a  breach  oi 
the  covenant  of  warranty,  is  disapproved  in  Beebe  v.  Swartwout,  3  Gilm. 
(111.)  168.  The  lessee  of  a  right  to  drill  oil  and  gas  wells,  who  was  enjoined 
by  a  grantee  of  the  coal  under  the  land,  the  grant  reserving  to  the  grantor 
the  right  to  drill  oil  and  gas  wells,  and  who  compromised  the  injunction  by 
payment  of  a  sum  of  money,  was  held  not  entitled  to  recover  on  the  lessor's 
covenant  for  quiet  enjoyment.  Chambers  v.  Smith,  183  Pa.  St.  122;  38  Atl. 
Rep.  522;  citing  Duff- Wilson,  69  Pa.  St.  316. 

"Hagler  v.  Simpson.  1  Busbee  (N.  C.).  384. 

"Leary  v.  Durham,  4  Ga.  593. 

•Tuggle  v.   Hamilton,  100  Ga.  292. 


COVENANTS    OF    WAREANTY    AND    FOE    QUIET    ENJOYMENT.       367 

ment  for  the  alternative  value  of  the  premises,  without  improve- 
ments, if  the  plaintiff  should  elect  to  accept  the  same  instead  of 
possession,  has  been  held  a  constructive  eviction  and  breach  of 
warranty.76  A  judgment  in  ejectment  against  the  covenantee 
where  he  remains  in  possession  under  the  "  occupying  claimants 
act "  pending  assessment  of  the  value  of  his  improvements,  will 
not  amount  to  a  constructive  eviction.77  Nor  will  such  a  judgment, 
entered  by  consent  of  parties,  have  that  effect.78 

The  mere  endorsement  of  the  word  "  cancelled  "  on  a  patent  for 
public  lands  by  the  commissioner  of  the  general  land  office  fifty- 
five  years  after  the  patent  issued,  is  not  a  constructive  eviction 
of  a  person  claiming  title  under  the  patent.79 

§  149.  Hostile  assertion  of  adverse  claim.  The  rule  that  a 
surrender  of  the  premises  to  an  adverse  claimant  operates  a  con- 
structive eviction  and  a  breach  of  the  covenant  of  warranty  is  to  be 
taken  with  this  qualification,  namely,  that  the  surrender  must  have 
been  in  consequence  of  a  hostile  assertion  of  the  rights  of  the  ad- 
verse claimant.80  In  this  respect  the  covenant  of  warranty  has 
been  distinguished  from  the  covenant  of  seisin  or  the  covenant 
against  incumbrances.  These  are  broken  as  soon  as  made  if  the 
title  be  bad,  or  the  estate  encumbered,  and  the  purchase  of  an 
adverse  claim,  or  an  incumbrance,  or  surrender  of  the  possession  to 
the  claimant,  adds  nothing  to  the  breach.81  It  has  been  held  that  a 
sale  of  the  premises  by  the  adverse  claimant  does  not  amount  to  a 
hostile  assertion  of  his  title.82  An  exception  to  this  rule  has  been 

"Mason  v.  Kellogg,  38  Mich.  132. 

"Lundgren  v.  Kerkow,   (Neb.)   95  N.  W.  Rep.  501. 

"Vincent  v.  Hicks,  23  Ky.  Law  R.  859;  64  S.  W.  456. 

"Ellis  v.  John  Crossley's  Sons,  119  Fed.  779. 

*  Morgan  v.  Hannibal  &  St.  J.  R.  Co.,  63  Mo.  129.  Funk  v.  Creswell,  5 
Clarke  (Io.),  62.  Fritz  v.  Pusey,  31  Minn.  368;  18  N.  W.  Rep.  94.  Moore 
v.  Vail,  17  111.  185.  Brown  v.  Corson,  16  Oreg.  388;  19  Pac.  Rep.  66.  As  the 
tenant  cannot  dispute  the  title  of  his  landlord,  the  covenantee  is  not  justified 
in  surrendering  the  title  to  his  tenant.  Bedell  v.  Christy,  62  Kans.  760; 
64  Pac.  Rep.  629. 

"Funk  v.  Creswell,  5  Cl.    (Iowa)   62. 

M  Green  v.  Irving,  54  Miss.  450 ;  28  Am.  Rep.  360.  Matteson  v.  Vaughn,  38 
Mich.  373.  Loomis  v.  Bedel,  11  N.  H.  74.  In  Hoy  v.  Taliaferro,  16  Miss.  727, 
it  was  held  that  a  sale  of  the  granted  premises  under  execution  against  the 
grantor  was  not  equivalent  to  an  actual  eviction,  though  the  grantee  aban- 
doned the  possession  after  the  sale. 


OOO  MARKETABLE    TITLE    TO    REAL    ESTATE. 

declared  to  exist  where  the  sale  is  by  the  State  while  holding  the 
paramount  title.  In  such  a  case  persons  in  possession  under  defec- 
tive titles  may  abandon  the  premises  and  sue  for  a  breach  of  the 
covenant  of  warranty  as  if  actually  evicted.83  It  has  also  been  held 
that  the  rule  that  there  must  have  been  a  hostile  assertion  of  the 
better  title  to  justify  a  voluntary  surrender  of  the  premises,  or  the 
purchase  of  such  title,  does  not  apply  where  the  title  is  outstanding 
in  the  United  States.84  A  sale  of  the  premises  under  a  prior  deed 
of  trust  or  mortgage,  is  such  hostile  assertion  of  the  paramount 
title  as  will  justify  the  grantee  in  surrendering  the  premises.85 
So,  also,  the  cancellation  of  a  defective  entry  of  the  premises  under 
the  public  land  laws.86 

The  covenantee,  surrendering  the  possession  and  suing  for  a 
breach  of  the  covenant  of  warranty,  must  not  only  show  that  the 
title  to  which  he  yielded  had  been  hostilely  asserted  against  him, 
but  that  it  was  in  fact  superior  to  that  of  the  covenantor.  When 
he  surrenders  or  suffers  the  possession  to  pass  from  him  without  a 
legal  contest  he  takes  upon  himself  the  burden  of  showing  that 
the  person  who  entered  had  a  title  paramount  to  that  of  his 
grantor,87  unless  the  surrender  was  made  after  judgment  in  eject- 
ment against  himself  wrhich  the  grantor  was  requested  to  defend.8* 

•*  Glenn  v.  Thistle,  23  Miss.  42 ;  Green  v.  Irving,  54  Miss.  450 ;  28  Am.  Rep. 
360.  Brown  v.  Allen,  57  Hun  (N.  Y.),  219;  10  N.  Y.  Supp.  714.  McGary  T. 
Hastings,  39  Cal.  368;  2  Am.  Rep.  445G.  Dillahunty  v.  Little  Rock  &  Fort 
S.  R.  Co.,  (Ark.)  27  S.  W.  Rep.  1002;  Abbott  v.  Rowan,  33  Ark.  593.  In 
analogy,  Schulenberg  v.  Harriman,  21  Wall.  (U.  S.)  44. 

"Kans.  Pac.  R.  Co.  v.  Dunmeyer,  19  Kans.  543.  Barr  v.  Greeley,  52  Fed. 
Rep.  926,  obiter.  Herington  v.  Clark,  56  Kans.  644;  44  Pac.  Rep  624;  Hollo- 
way  v.  Milder,  84  Miss.  776;  36  So.  Rep.  531. 

"Harr  v.  Shaffer,  52  W.  Va.  207 ;  43  S.  E.  Rep.  89. 

"Giddings  v.  Holter,  19  Mont.  263;  48  Pac.  Rep.  8. 

"  Hamilton  v.  Cutts,  4  Mass.  349,  353;  3  Am.  Dec.  222.  Greenvault  v. 
Davis,  4  Hill  (N.  Y.),  643.  Lambert  v.  Estes,  99  Mo.  604;  13  S.  W.  Rep.  284. 
Freymoth  v.  Nelson,  84  Mo.  App.  293.  Snyder  v.  Jennings,  15  Neb.  372; 
19  N.  W.  Rep.  501 ;  Cheney  v.  Straube,  35  Neb.  521 ;  53  N.  W.  Rep.  479,  and 
62  N.  W.  Rep.  234.  Westrope  v.  Chambers,  51  Tex.  178.  Moore  v.  Vail,  17 
111.  190.  Crane  v.  Collenbaugh,  47  Ind.  256.  Brandt  v.  Foster,  5  Clarke  ( lo. ) , 
287;  Funk  v.  Creswell,  5  Clarke  (lo.),  62;  Thomas  v.  Sticle,  32  Iowa,  71. 
Hester  v.  Hunnicutt,  (Ala.)  16  So.  Rep.  162.  In  this  case  the  covenantee 
had  incited  the  surrenderee  to  set  up  a  claim  to  the  premises. 

"*  Post,  §  175.  A  judgment  against  the  covenantor  in  an  action  against 
him  bv  the  covenantee,  is  not  conclusive  on  the  original  covenantor.  Mc- 
Crillis  v.  Thomas,  85  S.  W.  Rep.  673;  110  Mo.  App.  679  aff'd. 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.       369 

A  contrary  rule  would  subject  the  defendant  to  much  hardship, 
and  encourage  fraud  and  collusion  on  the  part  of  the  purchaser 
and  adverse  claimants.  The  covenantee  cannot  recover  on  the  war- 
ranty if  he  surrenders  the  premises  to  one  against  whom  he  could 
have  successfully  pleaded  the  statute  of  limitations  if  he  had  been 
sued  in  ejectment.  In  such  a  case  the  surrender  will  be  regarded 
as  having  been  made  to  one  who  had  no  title  to  the  premises.89 

We  have  seen  that  a  mere  judgment  in  ejectment  or  other  pos- 
sessory action  against  the  covenantee  is  not  equivalent  to  eviction.90 
It  is  sufficient,  however^  as  a  hostile  assertion  of  the  title  of  the 
adverse  claimant  to  justify  the  covenantee  in  surrendering  pos- 
session to  him,  or  in  buying  in  his  claim.  ~No  duty  devolves  upon 
the  covenantee  to  appeal  from  the  judgment.91 

In  several  early  cases  it  has  been  held  that  a  voluntary  abandon- 
ment of  the  premises  by  the  covenantee  after  judgment  against  him 
in  ejectment  is  not  an  eviction,92  but  they  have  been  frequently 
overruled  or  disapproved,  and  are  no  longer  regarded  as  authority.98 

§  150.  Purchase  of  outstanding  title.  The  purchase  of  a  supe- 
rior title  to  the  premises  from  a  stranger  by  the  covenantee  is  in 
effect  a  surrender  of  the  possession,  and  a  surrender  of  the  posses- 
sion to  him  who  has  the  better  right  amounts,  as  we  have  seen,  to  a 
constructive  eviction  from  the  premises.  The  law  does  not  require 
either  that  the  covenantee  shall  go  through  the  useless  ceremony  of 
removing  from  the  premises  and  immediately  re-entering  under  his 
newly-acquired  better  title,  or  that  he  should  submit  to  an  actual 
forcible  expulsion  with  or  without  legal  process  in  order  that  he 
may  have  an  action  on  the  covenant  of  warranty.  The  ouster  by 
purchase  of  the  superior  title  without  actually  leaving  the  premises 
is  as  effectual  as  it  could  be  by  peaceably  leaving  them  or  by  suffer- 
ing an  actual  expulsion.  The  covenantor's  interests  are  in  no  way 

"Britten  v.  Ruffin,  122  N.  C.  113;  28  S.  E.  Rep.  963. 

"Ante,  §  148. 

91  Sever  v.  North,  107  Ind.  545 ;  8  N.  E.  Rep.  576.  Wiggins  v.  Fender,  132 
N.  C.  628;  44  N.  E.  Rep.  362;  McCrillis  v.  Thomas,  85  S.  W.  Rep.  673,  110 
Mo.  App.  699,  aff'd. 

MWebb  v  Alexander,  7  Wend.  (N.  Y.)  286;  Lansing  v.  Van  Alstyne,  2 
Wend.  (N.  Y.)  563,  note;  Waldron  v.  McCarty,  3  Johns.  (N.  Y.)  473. 

93  Greenvault  v.  Davis,  4  Hill  ( N.  Y. ) ,  645,  and  cases  cited,  supra,  p.  343,  n. 
24 


370  MARKETABLE    TITLE    TO    REAL    ESTATE. 

subserved  by  requiring  evidence  of  an  actual  dispossession  of  the 
grantee.  On  the  contrary  he  is  benefited  by  the  purchase,  for 
thereby  he  is  saved  the  expense  which  would  be  incurred  by  the 
grantee  in  defending  the  title.94 

Therefore  it  has  been  frequently  held  that  the  covenantee  in  pos- 
session of  the  estate  may,  to  avoid  an  inevitable  eviction,  buy  in  the 
paramount  title  or  take  a  lease  thereunder  without  actual  change  of 
the  possession.95  This  he  may  do  without  violating  any  duty  which 
he  owes  to  the  covenantor.  Accordingly,  where  the  warranted 
premises,  while  in  the  possession  of  the  grantee,  were  sold  under 
decree  of  court  against  the  grantor  to  a  stranger,  the  report  of  sale 
returned  to  and  confirmed  by  the  court  and  a  deed  ordered  to  be 
made  to  the  purchaser,  and  the  grantee,  without  leaving  the  pos- 
session, bought  in  the  title  of  the  purchaser  under  the  decree,  it  was 
held  that  nothing  more  could  in  reason  or  in  justice  be  required  to 
show  an  eviction.  The  covenantee  was  not  bound  to  wait  until  he 
was  forced  out  of  possession  by  an  order  of  the  court.96  While  the 
covenantee  may  buy  in  an  outstanding  right  or  interest  in  order  to 
protect  his  interest,  there  is  no  obligation  upon  him  so  to  do,  and  it 
is  no  defense  to  an  action  on  the  covenant  that  he  knew  of  the  out- 

"Loornis  v.  Bedel,  11  N.  H.  74.     Lane  v.  Fury,  31  Ohio  St.  574. 

"Rawle  Covts.  (5th  ed.),  §  142;  2  Greenl.  Ev.,  §  244.  Barlow  v.  Delaney, 
40  Fed.  Rep.  97.  McGary  v.  Hastings,  39  Cal.  361;  2  Am.  Rep.  456.  Amos  v. 
Cosby,  74  Ga.  793.  Davenport  v.  Bartlett,  9  Ala.  179;  Roebuck  v.  Dupuy,  7 
Ala.  487.  Sisk  v.  Woodruff,  15  111.  15;  McConnell  v.  Downs,  48  111.  271; 
Cluycomb  v.  Hunger,  51  111.  378.  Mooney  v.  Burchard,  84  Ind.  285.  Richards 
v.  Homestead  Co.,  44  Iowa,  304 ;  24  Am.  Rep.  745 ;  Royer  v.  Foster,  62  Iowa, 
321;  Thomas  v.  Stickle,  32  Iowa,  76.  Sprague  v.  Baker,  17  Mass.  586,  lead- 
ing case;  Leffingwell  v.  Elliot,  10  Pick.  (Mass.)  204;  19  Am.  Dec.  343;  Esta- 
brook  v.  Smith,  6  Gray  (Mass.),  577;  66  Am.  Dec.  445;  Kramer  v.  Carter, 
136  Mass.  504.  Petrie  v.  Folz,  54  N.  Y.  Super.  Ct.  223.  King  v.  Kerr,  5  Ohio, 
158;  22  Am.  Dec.  777.  Brown  v.  Dickerson,  12  Pa.  St.  372.  Austin  v.  Mc- 
Kinney,  5  Lea  (Tenn.),  499.  Denson  v.  Love,  58  Tex.  4G8.  Haffcy  v. 
Birchetts,  11  Leigh  (Va.),  83,  88.  Turner  v.  Goodrich,  26  Vt.  708.  Potwin 
v.  Blasher,  9  Wash.  460;  37  Pac.  Rep.  710.  Pritchett  v.  Redick,  62  Neb.  296: 
86  N.  W.  Rep.  1091;  Craven  v.  Clary,  8  Kan.  App.  295;  55  Pac.  679.  Leet 
v.  Gratz,  92  Mo.  App.  422. 

"Hanson  v.  Buckner,  4  Dana  (Ky.),  254.  But  in  a  case  in  which  the 
granted  premises  had  been  sold  as  property  inherited  by  the  grantor  and 
liable  for  the  debts  of  the  ancestor,  in  a  proceeding  to  which  the  grantee  was 
no  party,  it  was  held  that  such  sale  was  not  binding  on  him,  and  hence  that 
he  was  not  entitled  to  recover,  as  upon  a  breach  of  warranty,  the  amount 
paid  by  him  for  a  quit  claim  from  the  purchaser  at  such  sale.  Pritchard  v. 
Smith,  107  Ky.  483;  54  S.  W.  Rep.  717. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       371 

standing  right  at  the  time  he  took  the  conveyance  and  might  have 
acquired  such  right  for  a  trifling  sum.97 

The  purchase  of  the  outstanding  paramount  title  amounts  to  a 
constructive  eviction,  whether  that  title  has  or  has  not  been  estab- 
lished by  judgment  or  decree.  The  covenantee  simply  takes  the 
risk  of  an  ability  to  show  that  the  title  so  acquired  is  in  fact  supe- 
rior to  that  of  the  covenantor.98  A  few  early  cases  in  New  York 
and  elsewhere  decide  that  the  covenant  of  warranty  is  broken  only 
by  an  actual  eviction,  and  that  the  purchase  of  an  outstanding 
superior  title,  or  a  surrender  to  the  holder  thereof,  is  insufficient  to 
establish  an  eviction ;"  but  the  rule  as  stated  prevails  now,  it  is  be- 
lieved, in  that  State,1  and  generally  throughout  the  entire  country. 
If  a  lessee  under  a  defective  title  is  disturbed  by  a  party  having  a 
paramount  title,  he  will  not  be  restrained  by  his  lease  from  pur- 
chasing the  paramount  title  without  the  consent  of  his  lessor, 
though  he  has  not  been  evicted  or  ousted  from  the  possession.  The 
rule  that  a  tenant  cannot  deny  the  title  of  his  landlord  has  no  ap- 
plication to  such  a  case.2  It  is  not  necessary  for  the  covenantee  to 
show  that  he  has  actually  paid  the  price  of  the  outstanding  title. 

"Kimball  v.  Saguin,   (Iowa)   53  N.  W.  Rep.   116. 

"Rawle  Covts.  for  Title  (5th  ed.),  §  146.  Turner  v.  Goodrich,  5  Deane 
(Vt.),  709.  Walker  v.  Deane,  79  Mo.  664.  Kramer  v.  Carter,  136  Mass.  504. 

"Waldron  v.  McCarty,  3  Johns.  (N.  Y.)  471;  Kerr  v.  Shaw,  13  Johns. 
(N.  Y.)  236;  Kinney  v.  McCulloch,  1  Sandf.  Ch.  (N.  Y.)  370;  Cowdrey  v. 
Coit,  44  N.  Y.  382;  4  Am.  Rep.  690.  Shelton  v.  Pease,  10  Mo.  482;  Caldwell 
v.  Bower,  17  Mo.  564.  Hannah  v.  Henderson,  4  Ind.  174;  Reasoner  v. 
Edmundson,  5  Ind.  393. 

1  Beyer  v.  Schulze,  54  N.  Y.  Super.  Ct.  212;  Petrie  v.  Folz,  54  N.  Y.  Super. 
Ct.  223;  Bordewell  v.  Colie,  1  Lans.  (N.  Y.)  146.  Wright  v.  Phipps,  90  Fed. 
556.  Rawle  Covts.  (5th  ed.),  §  144,  note.  In  Mississippi  a  covenantee  who 
buys  in  an  outstanding  paramount  title  cannot  have  an  action  for  breach  of 
the  covenant  of  warranty;  there  must  have  been  an  actual  dispossession, 
either  by  actual  eviction  or  surrender  of  the  possession.  But  he  can  recover 
from  the  .covenantee  in  assumpsit  the  money  so  expended  in  perfecting  the 
title,  or  have  a  decree  in  equity  against  the  vendor  for  reimbursement,  either 
of  which  accomplishes  precisely  the  same  purpose  as  an  action  for  breach  of 
the  covenant  of  warranty.  Wilty  v.  Hightower,  12  Sm.  &  M.  (Miss.)  478; 
Dennis  v.  Heath,  11  Sm.  &  M.  206;  Burruss  v.  Wilkinson,  31  Miss.  537;  Kirk- 
patrick  v.  Miller,  50  Miss.  521;  Dyer  v.  Britton,  53  Miss.  270;  Green  v. 
Irving,  54  Miss.  450 ;  28  Am.  Rep.  360. 

*  George  v.  Putney,  4  Cush.  (Mass.)  355;  50  Am.  Dec.  788;  Greeno  v. 
Munson,  9  Vt.  37;  31  Am.  Dec.  605.  Chambers  v.  Pleak,  6  Dana  (Ky.),  429; 
32  Am.  Dec.  78;  Lunsford  v.  Turner,  5  J.  J.  Marsh.  (Ky.)  104;  20  Am.  Dec. 
248.  Jackson  v.  McAuley,  13  Wash.  298;  43  Pac.  Rep.  41. 


372  MARKETABLE    TITLE    TO    REAL    ESTATE. 

It  is  sufficient  if  an  obligation  to  pay,  and  the  time  and  manner  in 
which  payment  is  to  be  made,  appear.3  It  has  been  held,  however, 
that  the  purchase  of  the  outstanding  title  must  have  been  made 
in  the  interest  of  the  grantee,  and  against  the  interest  of  the 
grantor,  for  the  purpose  of  extinguishing  the  title  theretofore  held 
by  the  grantee,  and  for  the  purpose  of  asserting  the  new  title  thus 
acquired  against  the  grantor.4 

The  discharge  of  a  prior  incumbrance  in  order  to  prevent  an 
inevitable  eviction,  is  also  a  constructive  breach  of  the  covenant  of 
warranty.5  This  covenant  is  broken  by  lawful  eviction,  whether 
under  an  incumbrance  or  a  paramount  title,  and  the  discharge  of 
the  incumbrance  to  prevent  eviction,  is  as  much  a  constructive 
eviction  as  a  purchase  of  the  outstanding  title  for  the  same  pur- 

3  Hooper  v.   Sac  Co.  Bank,   72   Iowa,   280;   33  X.  W.   Rep.   681;   Royer  r. 
Foster,  62  Iowa,  322;  17  X.  W.  Rep.  516. 

4  Wright  v.  Phipps,  90  Fed.  Rep.  556,  the  court  saying:    if  it  appear  that 
grantee  and  grantor  have  defended  against  the  claim  of  a  third  person  to  the 
land;  that  they  have,  through  several  years,  co-operated  to  settle  such  claim; 
that  they  have  agreed  to  share  in  the  expense  thereof,  and  do  so  share;  and 
pursuant  thereto  a  release  of  the  outstanding  title  is  made  to  the  grantee, 
upon  the  payment  of  a  sum  bearing  a  slight  relation  to  the  value  of  the  land 
by  the  grantee  and  grantor;  it  must  be  concluded  that  the  release  was  obtained 
and  taken  by  amicable  arrangement,  for  the  purpose  of  protecting  the  exist- 
ing interests  of  the  grantor  as  well  as  those  of  the  grantee. 

"Estabrook  v.  Smith,  6  Gray  (Mass.),  557;  66  Am.  Dec.  443;  Whitney  Y. 
Densmore,  6  Cush.  (Mass.),  128;  Bemis  v.  Smith,  10  Met.  (Mass.),  194. 
Collier  v.  Cowger,  52  Ark.  322;  12  S.  W.  Rep.  702.  Stipe  v.  Stipe,  2  Head 
(Tenn.),  171;  Kinney  v.  Norton,  10  Heisk.  (Tenn.),  388.  Brown  v.  Dicken- 
son,  12  Pa.  St.  372,  disapproving  Waldron  v.  McCarty,  3  Johns.  (N.  Y.)  471. 
Stewart  v.  Drake,  4  Halst.  (X.  J.  L.),  139.  Cole  v.  Lee,  30  Me.  392;  Kellj 
v.  Lowe,  18  Me.  244.  McLean  v.  Webster,  (Kans.)  26  Pac.  Rep.  10.  Where 
an  incumbrance  has  ripened  into  an  eviction  and  worked  a  breach  of  th« 
covenant  of  warranty,  the  liability  upon  that  covenant  and  the  covenant 
against  incumbrances,  is  substantially  identical;  the  damages  recovered  under 
either  are  for  the  eviction.  Kramer  v.  Carter,  136  Mass.  504;  Harringtoa 
v.  Murphy,  109  Mass.  299.  In  Kelly  v.'  Lowe,  18  Me.  244,  it  wa\?  held  that 
the  covenantee  might  recover  the  amount  paid  by  him  to  remove  an  incum- 
brance, under  which  he  was  liable  to  be  evicted,  though  the  payment  was  not 
made  until  after  his  suit  on  the  warranty  was  begun.  The  covenantee  may 
pay  off  a  judgment  binding  the  land,  and  hold  the  same  as  a  set-off  against 
the  purchase  money,  though,  at  the  time  of  such  payment,  an  execution  had 
been  issued  on  the  judgment,  and  levied  on  other  lands  subject  to  the  lien. 
Dunkleburger  v.  Whitehall,  70  Ind.  214. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       373 

pose.6  The  covenantor  will  not,  in  an  action  on  the  warranty,  be 
permitted  to  show  that  the  purchaser  agreed,  by  parol,  to  take  sub- 
ject to  the  incumbrance.  The  rule  permitting  the  true  considera- 
tion of  a  deed  to  be  shown  does  not  extend  thus  far.7 

The  purchase  of  an  outstanding  tax-title  will  not  entitle  the 
grantee  to  recover  on  a  covenant  of  warranty  or  a  covenant  of 
seisin,  if  the  tax-title  be  incapable  of  enforcement  against  the  land. 
The  mere  fact  that  the  tax-title  creates  a  cloud  upon  the  title  of 
the  covenantee  affecting  the  market  or  loan  value  of  the  land,  is  no 
ground  on  which  he  can  recover.8 

§  151.  Hostile  assertion  of  adverse  claim.  We  have  seen  that 
a  surrender  of  the  premises  to  an  adverse  claimant  will  not  amount 
to  a  constructive  eviction  unless  the  adverse  claim  has  been  hostilely 
asserted.  The  same  rule  applies  to  a  purchase  of  the  outstanding 
title.  The  covenantee  cannot  search  out  adverse  claims  to  the  land 
and  buy  them  up  in  order  to  acquire  a  right  of  action  against  the 
covenantor.  Some  particular  act  by  which  the  covenantee  is  inter- 
rupted must  be  shown.  If  he  voluntarily  buys  in  an  adverse  claim 
or  discharges  an  incumbrance,  without  previous  demand  upon  him 
having  been  made,  he  cannot  recover  as  for  a  breach  of  warranty.9 

•Bricker  T.  Bricker,  11  Ohio  St.  240.  Martin  v.  Atkinson,  7  Ga.  228;  50 
Am.  Dec.  403.  Warren  Stoddart  (Idaho),  59  Pac.  Rep.  540.  The  proposition 
in  the  text  seems  clearly  supported  by  the  weight  of  authority  in  the  United 
States.  But  in  New  York  it  has  been  held  that  the  redemption  of  land  by  the 
covenantee  from  a  tax  sale,  in  order  to  prevent  consummation  of  title  in  the 
purchaser  at  the  tax  sale,  did  not  amount  to  an  eviction,  and  that  the  cove- 
nantee could  »ot  recover  back  the  money  so  paid,  either  in  covenant  or  in 
assumpsit  for  money  paid  to  the  grantor's  use.  McCoy  v.  Lord,  19  Barb. 
(N.  Y.)  18. 

'Bever  v.  North,  107  Ind.  545;  8  N.  E.  Rep.  576.  Beach  v.  Packard,  10  Vt. 
96;  33  Am.  Dec.  185. 

'Bruington  v.  Barber,  (Kan.)  64  Pac.  Rep.  963,  where  the  tax-title  bought 
in  by  the  grantee,  having  been  on  record  for  two  years,  could  not  be  enforced 
against  the  land  (Gen.  Stats.  Kans.,  1899,  ch.  80). 

•Rawle  Covts.  (5th  ed.),  §§  55,  150.  Sprague  v.  Baker,  17  Mass.  586,  590. 
The  voluntary  payment  of  taxes  by  the  covenantee  assessed  upon  the  war- 
ranted land  at  the  time  of  the  conveyance,  before  any  attempt  is  made  to 
collect  the  same,  does  not  operate  a  breach  of  the  covenant  of  warranty. 
Leddy  v.  Enos,  (Wash.)  33  Pac.  Rep.  508.  McGary  v.  Hastings,  39  Cal.  360; 
2  Am.  Rep.  456.  Morgan  v.  Hannibal  &  St.  ,T.  R.  Co..  63  Mo.  129.  Turner  v. 
Goodrich,  26  Vt.  708.  In  Coble  v.  Willborn.  2  Dev.  L.  (N.  C.}  HOO.  this  rule 
was  carried  to  its  furthest  extent.  Judgment  in  ejectment  had  been  recovered 
against  the  covenantee,  and  before  the  issuing  of  a  writ  of  possession,  or  any 
actual  disturbance  of  the  possession,  he  purchased  the  rijrht*  of  the  plaintiff 


374  MARKETABLE    TITLE    TO    REAL    ESTATE. 

But  practically  this  rule  is  of  little  importance  if  the  deed  contains 
also  a  covenant  of  seisin,  for  this  covenant  is  absolutely  broken  as 
soon  as  made  if  the  title  be  outstanding;  and  in  an  action  for  the 
breach  the  purchaser  is  entitled  to  recover  as  substantial  damages, 
the  amount  paid  by  him  to  get  in  the  outstanding  title.10  So  also 
where  the  deed  contains  a  covenant  against  incumbrances,  and  the 
covenantee  discharges  or  buys  in  an  incumbrance  on  the  estate.11 

The  burden,  of  course,  devolves  upon  the  covenantee  to  show,  in 
an  action  on  the  warranty  that  the  title  thus  purchased  in,  was  par- 
amount to  that  of  the  covenantor,12  unless  the  purchase  was  made 
after  judgment  against  the  covenantee  in  ejectment,  or  other  pos- 
sessory action,  "which  the  covenantor  was  requested  to  defend.18 

The  measure  of  damages  which  the  purchaser  may  recover  where 
he  buys  in  the  outstanding  title  is  hereafter  considered.14 

§  152.  Loss  of  incorporeal  hereditament.  Adverse  easements. 
The  covenant  of  warranty  extends  to  and  embraces  not  only  the 
granted  premises  themselves,  but  all  rights,  easements  and  in- 
corporeal hereditaments  incident  or  appurtenants  thereto,  so  that 
if  the  covenantee  be  deprived  of  any  of  these  by  one  having  law- 

in  ejectment,  and  it  was  held  that  this  constituted  no  breach  of  the  covenant 
of  warranty. 

"Ante,  "Covenant  of  Seisin,"  §  116.  Anderson  v.  Knox,  20  Ala.  161. 
Rawle  Covts.  (5th  ed.),  §  192. 

uld.     Ante,  §  130. 

12  Beyer  v.  Schulze,  54  N.  Y.  Super.  Ct.  212.  Richards  v.  Iowa  Homestead 
Co.,  44  Iowa,  304 ;  Thomas  v.  Stickle,  32  Iowa,  76.  Turner  v.  Goodrich,  26  Vt. 
708.  Davenport  v.  Bartlett,  9  Ala.  187.  Sprague  v.  Baker,  17  Mass.  586. 
Furman  v.  Elmore,  2  Nott  &  McC.  (S.  C.)  189.  In  Lane  v.  Fury,  31  Ohio  St. 
574,  the  covenantee  was  compelled  to  proceed  in  equity  to  obtain  a  decree  cor- 
recting a  defective  acknowledgment  of  a  conveyance  by  a  married  woman 
under  whom  the  covenantor  held.  Such  a  decree  was  rendered,  and  judgment 
was  also  rendered  in  favor  of  the  covenantee  in  ejectment  against  her  by  the 
heirs  of  the  woman  who  had  executed  the  defective  deed.  These  facts  were 
held  sufficient  to  show  a  breach  of  the  covenant  of  warranty.  The  proceed- 
ing to  reform  the  defective  deed  was  treated  as  in  substance  a  purchase  or 
getting  in  of  the  outstanding  title.  This  case  stands  upon  narrow  grounds. 
The  covenant  of  warranty  is  against  lawful  claims  only,  and  judgment  having 
been  rendered  both  at  law  and  in  equity  against  the  heirs  of  the  married 
woman  seeking  to  take  advantage  of  the  defective  acknowledgment  of  her 
deed,  it  is  difficult  to  perceive  an  eviction,  actual  or  constructive,  by  any  one 
having  a  lawful  claim. 

"Post,  §  177. 

"  Post,  this  chapter,  §  168. 


COVENANTS    OF    WARRANTY    AND    FOB    QUIET    ENJOYMENT.       375 

ful  right,  the  covenant  is  broken,  and  a  right  of  action  accrues. 
The  early  case  of  Mitchell  v.  Warner15  decided  that  the  covenant 
of  warranty  was  not  broken  by  the  loss  of  an  easement  appurten- 
ant to  the  premises,  but  this  decision  has  been  frequently  overruled, 
expressly  or  substantially,  and  the  rule  just  stated  may  be  regarded 
as  established  by  the  weight  of  authority  in  America.16  If,  how- 
ever, at  the  time  of  the  grant  there  is  an  apparent  easement  over 
adjoining  lands  belonging  to  another,  not  necessarily  attached  as 
an  appurtenance  to  the  land  conveyed,  and  the  grantor  has  no  right 
or  title  to  such  easement,  an  interruption  of'the  use  thereof  by  the 
adjoining  owner  does  not  make  the  grantor  liable  for  damages 
under  covenants  of  warranty  and  quiet  enjoyment,  although  the 
grant  was  "  with  appurtenances."17  And  where  a  right  to  con- 
struct a  mill  race  across  a  lot  of  land  is  granted  with  warranty, 
the  warranty  is  not  broken  by  action  on  the  part  of  an  adjoining 
riparian  proprietor  that  deprives  the  grantee  of  the  right  to  flow 
water  through  the  race.18 

The  covenants  of  warranty  and  for  quiet  enjoyment  will  also  be 
broken  if  a  stranger  establish  a  right  to  an  easement  in  the  war- 
ranted premises.19  Actual  expulsion  of  the  grantee  from  the  whole 
and  every  part  of  the  land  is  not  essential  to  a  breach  of  these  cove- 

15  5  Conn.  497. 

10Rawle  Covts.  (5th  ed.)  §  J52,  n.  Wilson  v.  Cochran,  46  Pa.  St.  233. 
Kramer  v.  Carter,  136  Mass.  507.  Adams  v.  Condver,  87  N.  Y.  422.  A  cove- 
nant for  quiet  enjoyment  in  a  deed  is  broken  where  an  adjoining  owner  raises 
a  dam  on  his  land  by  virtue  of  a  paramount  right,  to  a  height  that  causes 
the  warranted  lands  to  be  overflowed.  Scriver  v.  Smith,  100  N.  Y.  471;  53 
Am.  Rep.  224,  distinguishing  Green  v.  Collins,  86  N.  Y.  246;  40  Am.  Rep. 
531.  A  covenant  for  quiet  enjoyment  is  as  much  implied  in  the  lease  of  an 
incorporeal  right  as  in  the  lease  of  tangible  property.  Mayor  v.  Mabie,  3 
Kern.  (N.  Y. )  151.  A  perpetual  injunction  against  the  use  of  an  easement 
by  the  grantee  is  equivalent  to  an  eviction.  Scheible  v.  Slagle,  89  Ind.  323. 
The  use  and  enjoyment  of  the  full  width  of  a  street  upon  which  the  granted 
premises  abut  is  within  a  covenant  for  quiet  and  peaceable  enjoyment  of  the 
premises  and  their  appurtenances.  Moliter  v.  Sheldon,  37  Kans.  246 ;  15 
Pac.  Rep.  231. 

"Green  v.  Collins,  86  N.  Y.  246;  40  Am.  Rep.  531. 

18  Griswold  v.  Allen,  22  Conn.  89.  As  to  whether  a  covenant  of  warranty  is 
broken  by  the  absence  of  a  right  in  the  grantee  of  a  mill  dam  to  flow  land 
adjacent  to  the  dam,  see  Swasey  v.  Brooks,  30  Vt.  692,. 

"Giles  v.  Dugro,  1  Duer  (N.  Y.),  234;  Scriver  v.  Smith,  100  N.  Y.  471;  53 
Am.  Rep.  224.  Russ  v.  Steele,  40  Vt.  310;  Clark  v.  Conroe,  38  Vt.  469. 
Haynes.  v.  Young,  36  Me.  557 ;  Lamb  v.  Danforth,  59  Me.  322 ;  8  Am.  Rep. 


376  MAEKETABLE    TITLE    TO    EEAL    ESTATE. 

nants;  it  is  sufficient  if  there  is  a  disturbance  of  the  free  and 
uninterrupted  use  of  the  land  by  one  having  paramount  title.2"  It 
is-true  that  the  existence  of  an  adverse  easement  in  the  granted 
premises  is  a  breach  of  the  covenant  against  incumbrances,  but  it  is 
equally  a  breach  of  the  covenants  of  warranty  and  for  quiet  enjoy- 
ment.21 Notice  of  the  existence  of  the  easement  at  the  time  of  the 
conveyance  does  not  affect  the  right  of  the  covenantee  to  recover 
for  the  breach.12 

The  warranty  does  not  extend  to  a  right  to  take  water  from  an 
irrigating  ditch  or  canal,  unless  the  right  is  appurtenant  to  the 
land.  If  the  right  is  not  described  in  the  deed  as  appurtenant 
to  the  land,  parol  evidence  is  admissible  to  determine  the  question. 
It  is  not  so  appurtenant  where  the  water  rights  are  represented 
by  shares  in  an  irrigation  company  which  may  be  sold  and  trans- 
ferred independently  of  the  land,  no  share  of  stock  representing 
any  one  particular  part  of  the  land.23 

426.  The  existence  and  use  of  a  private  right  of  way  over  the  granted  prem- 
ises is  a  breach  of  the  covenant  of  warranty.  Rea  v.  Minkler,  5  Laos. 
(N.  Y.)  196.  Browning  v.  Canal  Co.,  13  La.  Ann.  Ml.  RUBS  v.  Steele,  40  Vt. 
310;  Clark  v.  Conroe,  38  Vt.  469.  Butt  v.  Riffe,  78  Ky.  353.  The  covenant 
for  quiet  enjoyment  embraces  an  adverse  claim  to  the  use  of  the  water  of 
a  stream  on  the  warranted  premises.  Peters  v.  Grubb,  21  Pa.  St.  455.  The 
covenant  of  warranty  is  not  broken  by  the  existence  of  a  right  in  an  adjoining 
proprietor  to  draw  water  through  underground  pipes  from  a  spring  on  the 
warranted  premises.  McMullan  v.  Wooley,  2  Lans.  (N.  T.)  395. 

"Rea  T.  Minkler,  5  Lans.   (N.  Y.)    196. 

"Ross  v.  Steele,  40  Vt.  310.  In  Kramer  v.  Carter,  136  Mass.  504,  the 
breach  of  the  covenant  of  warranty  complained  of  was  tlie  existence  of  a 
building  restriction  in  a  deed  under  which  the  plaintiff's  grantor  held,  br 
which  the  plaintiff  was  deprived  of  the  full  and  complete  enjoyment  of  the 
premises.  This  was  held  a  breach  of  the  covenant  of  warranty  if  enforced, 
the  court  saying :  "  But  the  easement  was  not  only  an  incumbrance  which 
worked  a  present  breach  of  the  covenant  against  incumbrances;  it  was  also 
a  paramount  right,  which  might  work  a  breach  of  the  covenant  of  warranty. 
It  was  an  incorporeal  hereditament,  a  part  of  and  taken  out  of  the  war- 
ranted premises,  and  annexed  and  appurtenant  to  adjoining  lauds,  and  form- 
ing a  part  of  the  estate  in  them.  The  covenant  of  warranty  extends  to  such 
a  right,  and  the  right  may  be  so  exercised  as  to  work  a  breach  of  the  cove- 
nant. *  *  *  if  the  plaintiff  had  erected  a  building  upon  the  land  which  i* 
subject  to  the  restriction,  and  the  owners  of  the  adjoining  tenements  had  law- 
fully demolished  it.  it  would  have  been  an  eviction,  and  equally  so  whether 
done  by  an  act  in  pats,  or  by  action  at  law,  or  by  a  suit  in  equity." 

aRea  v.  Minkler,  5  Lans.   (X.  Y.)    196. 

"George  v.  Robison  (Utah),  63  Pac.  Rep.  819. 


COVENANTS    OF    WARRANTY    AXD    FOR    QUIET    ENJOYMENT.       377 

§  153.  COVENANTS  OF  WARRANTY  AND  QUIET  ENJOYMENT 
RUN  WITH  THE  LAND.  General  rule.  The  covenants  of  war- 
ranty and  for  quiet  enjoyment24  are  prospective  in  their  operation 
and  run  with  the  land  until  they  are  broken;  that  is,  they  enure 
to  the  benefit  of  the  last  purchaser  of  the  land,  upon  his  eviction, 
actual  or  constructive,  by  one  claiming  under  an  adverse  title.25 
Hence,  a  purchaser  is  not  only  protected  by  the  covenants  of  his 
immediate  grantor,  but,  in  case  he  loses  the  estate,  may  look  for  his 
indemnity  to  the  covenants  of  those  under  whom  his  grantor 
claims,29  and  this,  though  the  covenant  of  the  remote  grantor  does 
not  in  terms  warrant  the  title  to  the  "  assigns  "  of  the  covenantee.27 

After  breach  the  covenant  can  no  longer  run  with  the  land, 
nor  have  any  existence  except  for  the  purpose  of  supporting  an 

"The  covenant  for  quiet  enjoyment,  as  a  covenant  running  with  the  land, 
is  subject  to  the  same  construction  as  the  covenant  of  warranty.  Henry  v. 
McEntyre,  1  Hawk  (N.  C.),  410.  Hence,  whenever  the  latter  covenant  is 
spoken  of  in  that  respect  in  the  following  pages,  it  is  to  be  understood  that 
the  covenant  for  quiet  enjoyment  is  also  intended. 

25 Co.  Litt.  (Thomas'  ed.)  381  n.;  4  Kent  Com.  459;  Platt  on  Covts.  304; 
Rawle  Covt.  §  213;  3  Washb.  Real  Prop.  (3d  ed.)  399.  Beddoe  v.  Wadsworth, 
21  Wend.  (N.  Y.)  120;  Ford  v.  Walworth,  19  Wend.  (N.  Y.)  334;  Cunning- 
ham T.  Knight,  1  Barb.  (N.  Y.)  399;  Blydenburgh  v.  Cotheal,  1  Duer  (N.  Y.). 
176.  Carter  v.  Denman,  3  Zab.  (tf.  J.  L.)  260.  Blackwell  v.  Atkinson,  14 
Cal.  470.  Brown  v.  Metz,  33  111.  339;  85  Am.  Dec.  277;  Crisfield  v.  Storr, 
38  Md.  129;  11  Am.  Rep.  480.  Butler  v.  Barnes,  21  Atl.  Rep.  419.  Shelton 
T.  Codman,  3  Cush.  (Mass.)  318;  Whitney  v.  Dinsmore,  6  Cush.  (Mass.)  128. 
Swasey  v.  Brooks,  30  Vt.  692.  Saunders  v.  Flaniken,  77  Tex.  664;  14  S.  W. 
Rep.  236';  Flaniken  v.  Neal,  67  Tex.  629;  4  S.  W.  Rep.  212.  Rutherford  v. 
Montgomery,  14  Tex.  Civ.  App.  319;  37  S.  W.  Rep.  625.  Meade  v.  Boone 
(Tex.  Civ.  App.),  35  S.  W.  Rep.  483.  Tucker  v.  McArthur,  103  Ga.  409;  30 
S.  E.  Rep.  283.  McConaughey  v.  Bennett,  50  W.  Va.  172;  40  S.  E.  Rep.  540. 
Wesco  v.  Kern  (Oreg.),  59  Pac.  Rep.  548.  Libby  v.  Hutchinson,  72  N.  H 
190;  55  Atl.  547.  Mitchell  v.  Warner,  5  Conn.  497.  Scoffin  v.  Grandstaff, 
12  Kans.  365.  Susquehanna  Coal  Co.  v.  Quick,  61  Pa.  St.  33ft.  Williams 
T.  Beeman,  2  Dev.  (N.  C.)  483.  Nunnally  v.  White,  3  Met.  (Ky.)584.  Aslier 
Lumber  Co.  v.  Cornett,  23  Ky.  L.  Rep.  602 ;  63  S.  W.  Rep.  974.  In  a  State 
in  which  conveyances  by  persons  out  of  possession  are  held  valid,  such  a 
deed  has  been  held  sufficient  as  an  assignment  of  the  grantor's  right  of  action 
on  a  warranty  in  a  deed  under  which  he  claimed  title.  Allen  v.  Kennedy,  91 
Mo.  324;  2  S.  W.  Rep.  142. 

"Co.  Litt.  384a;  2  Sugd.  Vend.  (8th  Am.  ed.)  196,  237.  Beaseley  v.  Phil- 
lips, 20  Ind.  App.  182;  50  N.  E.  488. 

"Wiggins  v.  Pender,  132  N.  C.  628;  44  N.  E.  Rep.  362. 


378  MARKETABLE    TITLE    TO    REAL    ESTATE. 

action  for  damages  on  the  part  of  the  person  having  the  right  of 
action  at  the  time  of  the  breach.28 

The  covenants  in  a  void  deed,  for  example,  that  of  a  married 
woman  who  was  not  examined  privily  and  apart  from  her  husband, 
do  not  enure  to  the  benefit  of  a  remote  grantee ;  a  void  conveyance 
cannot  operate  as  an  assignment.29 

If  the  grantor  holds  under  a  conveyance  from  a  minor,  his  cove- 
nant of  warranty  is  not  broken  when  made  by  reason  of  the  fact 
that  the  minor  may  disaffirm  the  deed  on  reaching  his  majority. 
The  deed  being  valid  unless  disaffirmed  within  the  time  allowed  by 
law,  the  covenant  of  warranty  is  not  broken  until  the  disaffirmance 
of  the  deed  and  eviction  of  the  covenantee,  or  his  assignee.  Hence, 
the  covenant  enures  to  the  benefit  of  a  remote  grantee.30 

The  covenant  is  inseparable  from  the  land  with  respect  to  which 
it  is  made,  and  passes  to  the  grantee  of  the  covenantee  as  incident 
to  the  land,  and  not  by  way  of  assignment  separate  and  distinct 
from  the  conveyance.31  Hence,  the  benefit  of  the  covenant  cannot 
be  assigned  separate  and  apart  from  the  land ;  that  is,  to  a  person 
not  a  grantee  or  transferee  of  the  land.32 

The  rule  that  a  covenant  does  not  run  with  the  land  after  a 
breach  has  occurred  does  not  apply  in  the  case  of  an  assignee  for 
whose  benefit  the  land  was  purchased  by  the  covenantee,  and  to 
whom  it  was  subsequently  conveyed  by  the  latter.  In  such  a  case 
the  covenantee  is  a  mere  trustee  to  receive  and  hold  the  title  and 
the  covenants  for  the  use  of  the  true  owner.33  As  a  general  rule, 
however,  it  seems  that  a  mere  equitable  owner  of  the  premises, 
such  as  one  who  has  paid  the  purchase  money,  but  has  not  received 
a  conveyance,  is  not  entitled  at  law  to  the  benefit  of  covenants  that 
run  with  the  land.34 

§  154,  Assignee  may  sue  in  his  own  name.  The  rights  of  an 
assignee  of  covenants  running  with  the  land  are  cognizable  in  a 
court  of  law  by  reason  of  the  privity  of  estate  existing  between 

28  McConaughey  v.  Bennett,  50  W.  Va.  172 ;  40  S.  E.  Rep.  540. 
»  Smith  v.  Ingram,  132  N.  C.  959;  44  S.  E.  Rep.  643;  61  L.  R.  A.  878.  :    , 
•"Pritchett  v.  Redick,  62  Neb,  296;  86  N.  W.  Rep.  1091. 
31  McConaughey  v.  Bennett,  50  W.  Va.  172;  44  S.  E.  Rep.  540. 
MRavenel  v.  Ingram,  131  N.  C.  549;  42  S.  E.  Rep.  967. 
"Hall  v.  Plaine,   14  Ohio  St.  417.     Harper  v.  Perry,  28  Iowa,  57. 
"Dart  on  Vendors   (5th  ed.),  780.     As  to  rights  of  a  mortgagee,  see  post, 
§  160. 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.       379 

him  and  the  covenantor.  He  may,  therefore,  bring  an  action  in 
his  own  name  to  recover  damages  for  a  breach  of  the  covenant.15 
This,  in  fact,  seems  to  be  the  only  substantial  difference  between 
the  rights  of  assignees  of  the  covenant  of  warranty  and  that  of 
seisin  in  those  States  in  which  it  is  held  that  the  latter  covenant 
does  not  run  with  the  land ;  for  there  seems  to  be  no  doubt  of  the 
right  of  one  who  has  been  evicted  by  paramount  title  to  maintain 
an  action  in  the  name  of  his  grantee  on  a  covenant  of  seisin  con- 
tained in  a  conveyance  by  the  latter.36 

§  155.  Actions  against  original  covenantor.  If  the  estate: 
warranted  be  subdivided  and  pass  into  the  hands  of  separate 
grantees,  any  one  of  the  latter,  or  his  remote  assignee,  if  evicted, 
may  maintain  an  action  on  the  original  covenant  in  his  own  name. 
For  every  eviction  a  separate  cause  of  action  accrues  and  may  be 
enforced,  though  the  effect  be  to  subject  the  warrantor  to  numerous 
suits,  and  possibly  to  a  greater  liability  than  he  would  have  in- 
curred if  he  had  been  sued  by  the  original  covenantee.37  Where 
a  covenant  running  with  the  land  is  divisible  in  its  nature,  if  the 
entire  interest  in  the  land  passes  by  assignment  to  separate  and 
distinct  individuals,  the  covenant  will  attach  to  each  parcel,  pro 
tanto.3*  Whether  heirs  or  devisees  may  maintain  separate  actions 
on  a  covenant  of  warranty  has  been  made  a  question  in  a  case 
which  decides  that  they  may  maintain  a  joint  action  on  the  cove- 
nant.39 If  the  warranted  premises  be  subdivided  by  the  grantee, 
and  the  several  lots  conveyed  to  different  persons,  a  remote  grantee 
of  one  of  the  lots  may  maintain  an  action  on  the  covenant  of  the 
original  grantor  without  joining  the  vendees  of  the  other  lots.  In 

"Suydam  v.  Jones,  10  Wend.  (N.  Y.)  181;  25  Am.  Dec.  552.  McConaughey 
v.  Bennett,  50  W.  Va.  172;  40  &  E.  Rep.  540;  where  held,  also,  that  the 
assignee  could  not  sue  in  a  court  of  equity. 

"Ante,  §  110. 

"3  Com.  Dig.  262;  Dart  Vend.  (5th  ed.)  780;  2  Co.  Litt.  on  p.  309;  2 
Washb.  Reap  Prop.  662,  citing  2  Sugd.  Vend.  (Hamm.  ed.)  508.  Dickinson 
v.  Hoomes,  8  Grat.  (Va.)  353.  Kane  v.  Sanger,  14  Johns.  (N.  Y.)  94.  See, 
also,  Dougherty  v.  Duval,  9  B.  Mon.  (Ky.)  57.  Field  v.  Squires,  Deady 
(U.  S.),  366.  Schofield  v.  Homestead  Co.,  32  Iowa,  317.  Contra,  3  Prest. 
Abst.  57.  Perkins  v.  Hadley,  4  Hayw.  (Tenn.)  148.  McClure  v.  Gumble,  27 
Pa.  St.  288. 

"Co.  Litt.  385a;  Touch.  199.  Astor  v.  Miller,  2  Paige  (N.  Y.),  78;  Van 
Home  v.  Crain,  1  Paige  (N.  Y.),  455.  Allen  v.  Little,  36  Me.  170. 

"Paul  v.  Witman,  3  W.  &  S.    (Pa.)  407. 


380  MARKETABLE    TITLE    TO    REAL    ESTATE. 

such  a  case  the  rights  of  the  plaintiff  are  not  affected  by  the  fact 
that  the  other  grantees  have  failed  to  sue,  or  have  suffered  their 
rights  of  action  to  become  barred  by  the  statute.40 

§  156.  Release  of  covenant  by  immediate  covenantee.  While 
a  legal  devolution  of  the  title,  either  by  deed,  will  or  descent,  is 
necessary  to  give  to  the  owner  of  the  land  the  benefit  of  the  cove- 
nant of  warranty,"  it  is  not  by  virtue  of  any  assignment  of  a 
right  of  action  that  the  subsequent  grantee  takes  the  place  of  the 
original  covenantee,  though  he  is  commonly  called  "  assignee,"  as 
a  convenient  designation;  for  until  a  breach  of  the  covenant  has 
occurred  there  is  no  right  of  action  and  nothing  to  be  assigned.  It 
is  because  he  takes  the  same  estate  and  stands  in  the  place  of  the 
original  covenantee,  by  means  of  which  a  privity  of  estate  is  cre- 
ated, that  he  is  entitled  to  an  action  against  the  original  cove- 
nantor.42 Hence,  it  follows  that  the  covenantee  cannot  separate 
the  covenant  from  the  land  by  assigning  the  benefit  thereof  with- 
out transferring  the  land  ;43  nor  can  he  release  the  covenantor  from 
liability  after  he  has  transferred  the  land;44  though  it  seems  that 
such  a  release  will  be  valid,  even  as  against  .an  assignee,  if  exe- 
cuted by  the  covenantee  before  the  land  is  transferred.40  When 
the  covenantee  parts  with  the  land  he  loses  all  control  of  the 

"Whitzman  v.  Hirsh,  3  Pick.    (Tenn.)   513;  11  S.  W.  Rep.  421. 

"Rawle  Covt.  §  213.  In  Beardsley  v.  Knight,  4  Vt.  471;  33  Am.  Dec.  193, 
it  was  held  that  possession  under  an  instrument  inoperative  as  a  deed  for 
want  of  a  sufficient  seal,  would  not  entitle  the  intended  grantee  to  the  benefit 
of  a  covenant  of  warranty  running  with  the  land. 

42  Ante,  §§  110,  152.  4  Cruise's  Dig.  316;  4  Kent.  Com.  472,  n.  It  is  not 
because  of  the  delivery  of  the  deed  that  the  subsequent  grantee  becomes  en- 
titled to  the  benefit  of  the  covenant  which  it  contains.  It  is  because  he  takes 
the  estate  and  stands  4n  the  place  of  his  vendor.  Hopkins  v.  Lane,  9  Yerg. 
(Tenn.)  84. 

"Ely  v.  Hergesell,  46  Mich.  325.  Lewis  v.  Cook,  13  Ired.  L.  (N.  C.)  193. 
Lawrence  v.  Senter,  4  Sneed  (Tenn.),  52. 

44  Middlemore  v.  Goodale,  Cro.  Car.  503.  Suydam  v.  Jones,  10  Wend. 
(N.  Y.)  183;  25  Am.  Dec.  552.  Field  v.  Snell,  4  Gush.  (Mass.)  504.  Crocker 
v.  Jewell,  29  Me.  527;  Littlefield  v.  Getchell,  32  Me.  392.  Cooper  v.  Gran- 
berry,  33  Miss.  117.  Abby  v.  Goodrich,  3  Day  (Conn.),  433;  but  see  Clark 
v.  Johnson,  5  Day  (Conn.),  273.  After  the  covenantee  has  conveyed  the  land 
he  cannot  release  the  covenantor  until  he  has  paid  damages  to  the  party 
evicted,  thereby  satisfying  the  claims  of  the  latter  to  the  benefit  of  the 
covenant.  Brown  vrstaples,  28  Me.  497;  48  Am.  Dec.  504.  Thompson  v. 
Shattuck,  2  Met.  (Mass.)  615.  Chase  v.  Weston,  12  N.  H.  413. 

«Rawle  Covts.  for  Title,  §§   221,  223.     But  see  post.   §   162. 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.       381 

covenants  that  run  with  it,  and  can  maintain  no  action  for  a 
breach  occurring  thereafter,  even  though  it  be  instituted  and  pur- 
sued for  the  benefit  of  the  transferee,46  unless  he  has  made  good 
the  breach  to  the  party  evicted.47 

§  157.  Release  or  quit  claim  will  pass  benefit  of  covenants. 
The  right  of  a  subsequent  grantee  to  recover  on  the  warranty  of  a 
remote  grantor,  is,  of  course,  unaffected  by  the  fact  that  the  im- 
mediate conveyance  to  him,  or  any  intermediate  conveyance  was 
without  warranty,  since  a  mere  quit  claim  or  release  is  as  effec- 
tual to  pass  the  rights  of  the  original  covenantee  as  a  conveyance 
with  unlimited  covenants  for  title.48  The  covenant  of  warranty 
attaches  to  and  passes  with  the  land  without  regard  to  the  nature 
of  the  conveyance  by  which  the  transfer  of  the  land  is  effected.49 

"Griffin  v.  Fairbrother,  1  Fairf.    (Me.)   91;  Crocker  v.  Jewell,  29  Me.  527. 

"Post,  §  158. 

"Bac.  Abr.  Letter  N.;  1  Co.  Inst.  384b.  Spencer's  Case,  5  Coke,  17.  Cum- 
mins v.  Kennedy,  3  Litt.  (Ky.)  118,  122;  14  Am.  Dec.  45.  This  case  contains 
an  able  exposition  of  common-law  reasons  for  the  rule  stated  in  the  text. 
Young  v.  Triplett,  5  Litt.  (Ky.)  248;  Hobbs  v.  King,  2  Met.  (Ky.)  139; 
Hunt  v.  Orwig,  17  B.  Mon.  (Ky.)  84;  66  Am.  Dec.  144;  Thomas  v.  Bland 
(Ky.),  14  S.  W.  Rep.  955.  Brown  v.  Staples,  28  Me.  502;  48  Am.  Dec.  504. 
Beddoe  v.  Wadsworth,  21  Wend.  (N.  Y.)  120;  Andrews  v.  Wolcott,  10  Barb. 
(N.  Y.)  23;  Hunt  v.  Amidon,  4  Hill  (N.  Y.),  345;  40  Am.  Dec.  283;  Jenks 
v.  Quinn,  137  N.  Y.  223;  33  N.  E.  Rep.  376.  De  Chaumont  v.  Forsyth,  2 
Pa.  St.  514.  Gunter  v.  Williams,  40  Ala.  572.  Hopkins  v.  Lane,  9  Yerg. 
(Tenn.)  83.  Redwine  v.  Brown,  10  Ga.  319.  Hodges  v.  Saunders,  17  Pick. 
(Mass.)  470.  Scoffins  v.  Grandstaff,  12  Kans.  365.  Saunders  v.  Flanniken, 
77  Tex.  662;  14  S.  W.  Rep.  236.  Walton  v.  Campbell,  51  Neb.  788;  71  N.  W. 
Rep.  737.  Troxell  v.  Stevens,  57  Neb.  329;  77  N.  W.  Rep.  781.  Ravenel  v. 
Ingram,  131  N.  C.  549;  42  S.  E.  Rep.  967.  But  where  A.  B.  and  C.  con- 
veyed with  general  warranty  to  D.,  as  trustee,  with  power  to  convey  with 
covenant  only  against  his  own  acts,  and  D.  so  conveys,  his  grantee  can  main- 
tain no  action  as  assignee  on  the  covenant,  in  the  deed  from  A.,  B.  and  C. 
upon  eviction  under  a  paramount  title  derived  from  A.,  B.  and  C.  Abbott 
v.  Hills  (Mass.),  33  N.  E.  Rep.  392.  The  proposition  in  the  last  head  note 
(prepared  by  the  court)  to  the  case  of  Beardsley  v.  Knight,  4  Vt.  471,  that 
a  subsequent  grantee  claiming  the  benefit  of  a  covenant  of  warranty  running 
with  the  land,  must  show  an  assignment  by  deed  of  warranty,  seems  an  obiter 
dictum.  The  action  was  by  an  assignee  claiming  under  a  quit-claim  deed, 
and  the  case  was  adjudged  against  him  on  the  ground  that  he  did  not  show 
or  claim  that  he  was  ever  in  possession  under  that  deed.  The  point  that  he 
was  not  entitled  to  recover  because  his  assignment  was  by  deed  without  war- 
ranty, does  not  appear  to  have  been  made. 

"Thus,  in  Hobbs  v.  King,  2  Met.  (Ky.)  139,  it  was  held  that  the  conveyance 
of  a  feme  covert,  incompetent  to  bind  herself  by  covenants  of  warranty,  was 


382  MARKETABLE    TITLE    TO    REAL    ESTATE. 

An  assignee  by  act  of  the  law,  such  as  one  holding  under  the  deed 
of  a  sheriff  or  a  commissioner  is  entitled  to  the  benefit  of  cove- 
nants held  by  the  person  last  seised.  In  fact  any  person  to  whom 
the  land  and  the  legal  title  thereto  passes,  whether  by  descent, 
devise  or  conveyance,  succeeds  to  all  the  rights  of  the  covenantee,50 
except  perhaps,  in  the  single  instance,  of  a  purchaser  at  a  tax 
sale.51  It  has  been  held  that  a  tax  deed  will  not  pass  the  benefit 
of  covenants  for  title,  and  the  covenantee's  right  of  action  is  not 
barred  by  his  having  permitted  the  land  to  be  sold  for  taxes.52 

§  158.  Intermediate  covenantee  must  have  been  damnified. 
If  there  be  several  successive  grantees  of  the  land,  an  intermediate 
grantee  can  maintain  no  action  for  a  breach  of  the  covenant  unless 
he  has  been  damnified;  that  is,  unless  he  has  been  compelled  to 
satisfy  a  grantee  subsequent  to  himself  for  loss  of  the  land.53 
Hence,  it  follows  that  if  the  intermediate  grantee  conveyed  wrth- 
out  warranty,  so  that  no  liability  could  devolve  upon  him  for  a 

sufficient  to  pass  to  her  grantee  the  benefit  of  covenants  contained  in  the  con- 
veyance to  her.  And  in  Taylor  v.  Lane,  18  Tex.  Civ.  App.  545,  it  was  held 
that  a  deed  by  a  sheriff,  on  foreclosure  of  a  vendor's  lien,  passes  the  right 
to  recover  for  breach  of  a  covenant  of  warranty  or  a  covenant  against  in- 
cumbrances. 

60  Shep.  Touch,  ch.  7,  p.  572.  Appowel  v.  Monnoux,  Moore's  Rep.  97.  White 
v.  Whitney,  3  Met.  (Mass.)  81.  Streaper  v.  Fisher,  1  Rawle  (Pa.)  155; 
Hurst  v.  Lithgrow,  2  Yeates  (Pa.),  24;  1  Am.  Dec.  326.  White  v.  Presly, 
54  Miss.  313.  Lewis  v.  Cook,  13  Ired.  L.  193.  Williams  v.  Burg,  9  Lea 
(Tenn.),  455. 

"Rawle  Covts.  (5th  ed.)  §  213.  Kingdon  v.  Nottle,  4  Maule  &  S.  53.  Smith 
v.  Perry,  26  Vt.  279. 

"Bellows  v.  Litchfield,  83  Iowa,  36;  48  N.  W.  Rep.  1062;  Crum  v.  Getting, 
22  Iowa,  411. 

"Alien  v.  Little,  36  Me.  170;  Fairbrother  v.  Griffin,  10  Me.  96.  Baxter  v. 
Ryerss,  13  Barb.  (N.  Y.)  267.  Wheeler  v.  Sohier,  3  Cush.  (Mass.)  219,  dis- 
approving dicta  in  Bickford  v.  Page,  2  Mass.  460,  and  Kane  v.  Sanger,  14 
Johns.  (N.  Y.)  93.  Thompson  v.  Sanders,  5  T.  B.  Mon.  (Ky.)  358;  Birney 
v.  Hann,  3  A.  K.  Marsh.  (Ky.)  322;  13  Am.  Dec.  167.  Hampton  v.  Pool,  28 
Ga.  514.  Jones  v.  Richmond  (Va.),  13  S.  E.  Rep.  414.  Clement  v.  Bank, 
61  Vt.  298;  17  Atl.  Rep.  717.  Hammerslough  v.  Hackett,  48  Kans.  700;  29 
Pac.  Rep.  1079.  Contra  in  Texas,  Alvord  v.  Waggoner  (Tex.  Civ.  App.),  29 
S.  W.  Rep.  797.  A  palpable  reason  why  an  intermediate  covenantee  who  has 
not  been  damnified,  cannot  sue  for  a  breach  of  the  covenant  of  warranty  is, 
that  if  he  were  permitted  to  do  so,  it  would  be  possible  for  him  to  speculate 
in  the  misfortunes  of  the  covenantor  without  himself  incurring  any  liability. 
For  if  he  conveyed  without  warranty  his  grantee  could  have  no  recourse 
against  him  for  indemnity,  though  he  might  himself  have  recovered  full 
damages  from  the  covenantor. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       383 

subsequent  eviction  from  the  premises,  he  can  maintain  no  action 
against  the  original  covenantor  for  the  breach.54  It  has  been  held 
that  the  acceptance  of  a  conveyance  with  warranty  deprived  the 
intermediate  covenantee  of  any  right  of  action  against  the  original 
covenantor,  and  confined  him  to  his  remedy  upon  the  immediate 
covenant  of  his  grantor.55  But  this  decision  has  been  overruled 
in  the  State  in  which  it  was  rendered,56  and  frequently  disap- 
proved in  others,57  and  the  rule  established  that  an  intermediate 
covenantee  who  has  been  compelled  to  make  good  the  loss  of  the 
premises  to  a  subsequent  grantee,  may  recover  against  the  original 
covenantor.58  In  order  to  be  "  damnified  "  it  is  not  necessary  that 
a  judgment  shall  have  been  recovered  against  the  intermediate 
covenantee.  He  may  voluntarily  satisfy  his  grantee  who  has  been 

84  Hunt  v.  Middlesworth,  44  Mich.  448.  Cases  cited  in  last  note,  and  Kane 
v.  Sanger,  14  Johns.  (N.  Y.)  89.  The  converse  of  this  proposition,  namely, 
that  if  the  covenantee  himself  conveyed  with  warranty  he  would  be  entitled 
to  recover  against  the  covenantor  on  the  ground  that  he  (the  covenantee) 
was  liable^  over  to  his  grantee,  was  decided  in  this  case.  It  has  been,  how- 
ever, disapproved  on  this  point.  See  cases  cited,  n.  57  below. 

65 Kane  v.  Sanger,  14  Johns.    (N.  Y.)    89. 

58Withey  v.  Mumford,  5  Cow.  (N.  Y.)  137;  Suydam  v.  Jones,  10  Wend. 
(N.  Y.)  184;  Preiss  v.  Poidevin,  19  Abb.  N.  Cas.  (N.  Y.)  123. 

"Williams  v.  Wetherbee,  1  Aik.  (Vt.)  233.  Wheeler  v.  Sohier,  3  Cush. 
(Mass.)  219.  Redwine  v.  Bro\vn,  10  Ga.  319.  Hopkins  v.  Lane,  9  Yerg. 
(Tenn.)  79;  Lawrence  v.  Senter,  4  Sneed  (Tenn.),  52. 

58 Cases  cited  supra,  n.  37,  p.  361.  Garlock  v.  Cross,  5  Cow.  (N.  Y.)  143; 
Withey  v.  Mumford,  5  Cow.  (N.  Y.)  137.  Markland  v.  Crump,  1  Dev.  &  Bat. 
(N.  C.)  94;  27  Am.  Dec.  230.  In  Booth  v.  Starr,  1  Conn.  248;  6  Am.  Dec. 
233,  a  leading  case  on  this  point,  the  court  said:  "The  last  assignee  can 
never  maintain  an  action  on  the  covenant  of  warranty  till  he  has  been  evicted. 
Though  the  title  may  be  defective,  though  he  may  be  constantly  liable  to  be 
evicted,  though  his  warrantor  may  be  in  doubtful  circumstances,  yet  he  can 
bring  no  action  on  the  covenant  till  he  is  actually  evicted,  for  till  then  there 
has  been  no  breach  of  the  covenant,  no  damages  sustained.  By  a  parity  of 
reason  the  intermediate  covenantees  can  have  no  right  of  action  against  their 
covenantors  till  something  has  been  done  equivalent  to  an  eviction,  for  till 
then  they  have  sustained  no  damage.  As  the  last  assignee  has  the  election 
to  sue  all  or  any  of  the  covenantors,  as  a  recovery  and  satisfaction  by  an 
intermediate  covenantee  against  a  previous  covenantor  would  bar  a  suit  by  a 
subsequent  assignee,  such  intermediate  assignee  ought  not  to  be  allowed  to 
sustain  his  action  till  he  has  satisfied  the  subsequent  assignee ;  for  other- 
wise every  intermediate  covenantee  might  sue.  the  first  covenantor ;  one  suit 
would  be  no  bar  to  another;  they  might  all  recover  judgment  and  obtain 
satisfaction,  so  that  a  man  might  be  liable  to  sundry  suits  for  the  same  thing, 
and  be  compelled  to  pay  damages  to  sundary  different  covenantees  for  the 
same  breach  of  covenant." 


384  MARKETABLE    TITLE    TO    REAL   ESTATE. 

evicted,  and  then  recover  on  the  covenant  of  his  grantor,  taking, 
however,  the  risk  of  having  the  latter  establish  the  superiority  of 
his  title.59 

§  159.  Remote  assignee  may  sue  original  covenantor.  Th& 
last  grantee  or  assignee  may  maintain  simultaneous  actions  against 
each  prior  successive  grantor  who  conveyed  with  warranty  and 
recover  a  several  judgment  against  each;60  but  satisfaction  of  one 
of  the  judgments  will  be  satisfaction  of  all,  and  may  be  pleaded 
in  bar  of  any  other  other  action  on  the  covenant  by  the  same 
plaintiff,  or  by  any  subsequent  covenantee  to  whom  the  party 
making  satisfaction  may  be  liable,61  even  though  the  judgment 
satisfied  be  less  in  amount  than  one  recovered  against  such  subse- 
quent covenantee  by  the  last  grantee.62  If  the  land  came  to  the 
party  evicted  through  several  successive  conveyances  with  war- 
ranty, he  is  not  obliged  to  sue  first  his  immediate  covenantor,  but 

89  Herrin  v.  Mclntyre,  1  Hawkes  (N.  C.),  410.  The  case  of  Kane  v.  Sanger, 
14  Johns.  (N.  Y.)  89,  in  so  far  as  it  decides  that  the  intermediate  covenantee 
is  "  damnified,"  within  the  meaning  of  the  rule  stated  in  the  text,  *by  a  los« 
of  the  right  to  recover  the  unpaid  purchase  money  from  his  evicted  grantee, 
is  overruled,  it  is  apprehended,  by  the  case  cited  supra,  notes  3,  4,  5,  p.  365. 

80  Rawle  Covt.  §  214. 

61  King  v.  Kerr,  5  Ohio,  155 ;  22  Am.  Dec.  777 ;  Foots  v.  Burnett,  10  Ohio, 
317;   36  Am.  Dec.  90;  Wilson  v.  Taylor,  9  Ohio  St.  &95;  75  Am.  Dec.  488. 

62  Wilson  v.  Taylor,  9  Ohio  St.  595 ;  75  Am.  Dec.  488.     This  case  presented 
a  novel  question.     The  last  grantee  brought  separate  actions  and  recovered  a 
separate    judgment   against    three   successive   grantors    with   warranty,   each 
judgment  being  for  a  different  amount.     The  first  grantor  having  satisfied 
the  judgment  against  himself,  which  was  the  smallest  in  amount,  the  ques- 
tion arose  whether  such  satisfaction  was  a  bar  to  an  action  over  against  him 
by  his  grantee  and  covenantee;  the  second  grantor,  who  had  paid  the  judg- 
ment, larger   in  amount,  recovered  against  him  by  the  last  grantee.     The 
question  was  presented  by  demurrer  to  a  plea  of  the  first  grantor  setting  up 
this  defense  in  an  action  against  him  by  his  covenantee,  the  second  grantor. 
The  court,  by  BBINKEBHOFF,  C.  J.,  said :     "  The  question  seems  to  be  one  of 
first  impression,  and  our  minds  are  not  free  from  difficulty  in  regard  to  it; 
but,  on  the  whole,  we  are  unanimously  of  opinion  that  the  plea  is  good.     As 
before   remarked,   Weis,   the   last   covenantee,   and  who   suffered   damage  by 
reason  of  partial  eviction,  was  entitled  to  his  several  action  against  all  the 
prior  covenantors.     Not  only  was  his  right  of  action  perfect  against  all,  but 
the   same   rule  of   damages  would  apply  as   to  all ;    and  although   he   could 
have   but  one   satisfaction,   yet   he  was   clearly   entitled   to   recover   the   full 
amount  of  his  damages  against  each.    If  he  failed  to  make  the  proper  showing 
in  order  to  recover  the  full  amount  of  his  damages  against  each,  it  was  his 
own  fault;   and  having  collected  and  received  the  amount  recovered  against 
the  first  covenantor,  who  occupied  the  position  in  law  of  a  guarantor  of  all 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.,      385 

may  maintain  an  action  against  any  other  of  the  prior  grantors, 
and  a  judgment  against  any  one  of  these,  so  long  as  it  remains 
unsatisfied,  will  be  no  bar  to  an  action  against  the  others.63 

§  100.  Mortgagee  entitled  to  benefit  of  covenant  of  warranty. 
The  general  rule  is  that  a  mortgagee  is  at  law  entitled,  as  assignee, 
to  the  benefit  of  a  covenant  of  warranty  contained  in  any  convey- 
ance under  Which  the  mortgagor  claims  title,  so  far  as  may  be 
necessary  to  preserve  unimpaired  the  security  intended  by  the 
mortgage.64  In  equity,60  however,  and  at  law  in  such  of  the  Amer- 

tlie  subsequent  grantees,  it  seems  to  us  that  Weis'  claim  under  all  the  cove- 
nants must  be  held  satisfied;  and  that  all  enforcement  of  the  judgments 
a  gainst  the  other  intermediate  covenantors  was  wrongful  and  in  violation  of 
the  principle  that  he  could  have  but  one  satisfaction."  The  court  then  sug- 
gested that  the  plaintiff  had  mistaken  his  remedy,  and  that  he  should  have 
enjoined  the  collection  of  the  judgment  against  himself,  or  have  sued  to 
recover  back  the  money  paid  thereon  as  money  had  and  received  to  his  use 
by  the  last  grantee. 

"Withey  v.  Mumford,  5  Cow.  (N.  Y.)  137;  Garlock  v.  Cross,  5  Cow. 
(N.  Y.)  143.  King  v.  Kerr,  5  Ohio,  158;  22  Am.  Dec.  777.  Booth  v.  Starr, 
1  Conn.  248;  6  Am.  Dec.  233. 

"Lockwood  v.  Sturdevant,  6  Conn.  373;  Cross  v.  Robinson,  21  Conn.  387. 
Lloyd  v.  Quinby,  5  Ohio  St.  262.  Andrews  v.  Wolcott,  16  Barb.  (X.  Y.)  21; 
Astor  v.  Miller,  2  Paige  Ch.  (N.  Y.)  68;  Varick  v.  Briggs,  6  Paige  Ch.  (N.  Y.) 
324.  111.  Land  Co.  v.  Boomer,  91  111.  114.  Lane  v.  Woodruff  (Kans.  App.),  40 
Pac.  Rep.  1079.  Harper  v.  Perry,  28  Iowa,  57 ;  Rose  v.  Schaffner,  50  Iowa, 
486;  Devin  v.  Hendershott,  32  Iowa,  192.  This  was  an  action  by  the  grantee 
or  beneficiary  in  a  deed  of  trust  on  a  covenant  of  warranty  contained  in  a 
conveyance  to  his  grantee.  The  defense  was  that  defendant,  the  covenantor, 
had  satisfied  the  covenantee  ( grantor  in  the  deed  of  trust)  for  the  breach 
before  action  brought.  There  was  a  judgment  for  the  defendant  which  was 
reversed  on  appeal,  the  court  holding  that  the  covenant  passed  with  the 
land  to  the  grantee  in  the  deed  of  trust  and  that  he  alone  could  sue  for  the 
breach.  In  McGoodwin  v.  Stephenson,  11  B.  Mon.  (Ky. )  21,  the  covenantee 
mortgaged  the  land  and  was  afterwards  evicted;  whereupon  he  brought  an 
action  for  breach  of  the  covenant  and  recovered  a  judgment  for  damages. 
This  was  reversed  on  appeal,  the  court  holding  that  the  legal  title  and  with 
it  the  right  to  the  benefit  of  the  covenant  remained  in  the  mortgagee,  and 
that  so  long  as  the  mortgage  remained  in  fall  force  and  unsatisfied  the 
mortgagor  could  maintain  no  action  on  the  covenant.  A  mortgagor  who 
remains  in  possession  by  right,  or  by  consent  of  the  mortgagee,  may  main- 
tain an  action  for  breach  of  a  covenant  of  warranty  in  the  deed  from  his 
grantor.  Pence  v.  Gabbert,  70  Mo.  App.  201.  (Contra,  Devin  v.  Hendershott, 
32  Iowa,  192.) 

45  Dart  Vendors  (5th  ed.),  780;  Rawle  Covt.  §  219.  Wesco  v.  Kern  (Oreg.), 
59  Pac.  Rep.  548. 

25 


MABKETABLE    TITLE    TO    REAL    ESTATE. 

loan  States  as  maintain  the  rule  that  a  mortgage  is  a  mere  security 
for  the  payment  of  money  and  that  the  legal  title  remains  in  the 
mortgagor,"  a  purchaser  from  the  mortgagor  is  treated  as  an 
assignee  of  the  covenant,  subject  to  the  satisfaction  of  the  mort- 
gage. Doubtless  in  those  States  in  which  the  mortgagee  is  still 
treated  as  the  holder  of  the  legal  title,  the  rights  of  the  mortgagor 
in  the  covenant  of  warranty  would  not  be  recognized  in  a  court 
of  law,  and  he  would  be  driven  to  a  court  of  equity  for  relief.*7 

If  one  holding  under  a  conveyance  with  warranty  execute  a 
purchase-money "  mortgage  with  like  warranty,  he  will  not  be 
thereby  estopped  from  maintaining  an  action  on  the  original 
warranty.** 

§  161.  The  original  covenantor  must  have  been  actually  seized. 
It  has  been  held  in  America,  following  an  early  English  decision,0 

"Davidson  v.  Cox,  11  Xeb.  250;  9  X.  W.  Rep.  95.  White  v.  Whitney,  3  Met. 
(Mass.)  81.  DOWXEB,  J.,  in  Wright  v.  Speny,  21  Wis.  334.  Ely  v.  Hergeaell, 
46  Mich.  325;  9  N.  W.  Rep.  435. 

47  In  Kavanagh  v.  Kingston,  39  Upp.  Can.  Q.  B.  415,  and  Claxton  T.  Gilbert, 
24  Upp.  Can.  C.  B.  500,  it  was  decided  that  where  the  purchaser  of  land  took 
a  conveyance  with  warranty  from  the  vendor  and  executed  a  mortgage  to 
-ecure  the  purchase  money,  the  benefit  of  the  covenants  would  at  law  vest  in 
the  mortgagee  notwithstanding  the  fact  that  he  was  the  party  bound  by 
them.  The  same  result  would,  of  course,  follow  in  those  States  in  which  the 
legal  title  is  held  to  be  in  the  mortgagee.  There  could  be  no  doubt,  how- 
ever, that  in  such  a  case  the  covenants  would  be  enforced  in  equity  for  the 
benefit  of  the  mortgagor.  In  Brown  v.  Staples,  28  Me.  497;  48  Am.  Dec. 
504,  it  was  held  that  the  covenants  in  the  mortgage  would  not  prevent  the 
maintenance  of  an  action  on  the  covenants  in  the  original  deed.  One  who 
purchases  under  a  foreclosure  of  a  purchase-money  mortgage,  is  entitled  to 
the  benefit  of  a  covenant  of  warranty  in  the  original  conveyance  from  the 
mortgagee  to  the  mortgagor.  In  such  a  case  the  execution  of  the  purchase- 
money  mortgage  by  the  covenantee  does  not  extinguish  the  covenants  in  the 
mortgagee's  contemporaneous  conveyance  to  him.  Town  v.  Needham,  3  Paige 
Ch.  (N.  Y.)  545;  24  Am.  Dec.  246. 

•Hubbard  v.  Norton,  10  Conn.  433.     Haynes  v.  Stevens,  11  X.  H.  28. 

"Xoke  v.  Awder,  Cro.  Eliz.  373.  This  was  an  action  on  a  covenant  for 
quiet  enjoyment  contained  in  a  lease  brought  by  an  assignee  of  the  lessee 
against  the  original  covenantor.  Judgment  was  about  to  be  entered  for  the 
plaintiff,  when  it  was  objected  by  Sir  Edward  Coke,  counsel  for  the  de- 
fendant, that  the  plaintiff  could  not  recover  without  showing  an  eviction 
under  a  paramount  title,  and  that,  if  be  showed  such  an  eviction,  he  estab- 
lished the  fact  that  the  original  covenantor  was  wrongfully  in  possession  and 
that  no  estate  passed  from  him  except  a  lease  by  estoppel,  and  consequently 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.       387 

ihat  if  one  unlawfully  in  posession  of  an  estate  convey  it  with 
warranty  against  the  claims  of  the  true  owner  and  put  his  grantee 
in  possession,  a  subsequent  grantee  could  not  recover  at  law  on 
the  warranty  on  the  ground  that  no  estate  having  passed  by  the 
original  covenantor's  conveyance  there  was  nothing  with  which  the 
covenant  could  run.70  Obviously  such  a  docrtine  would  destroy 
ihe  .usefulness  of  the  covenant  of  warranty  as  an  assurance  of  the 
title  to  those  claiming  under  the  covenantee,  for,  as  a  general  rule, 
it  is  only  in  case  of  an  eviction  under  a  paramount  title  that  the 
assignee  has  any  occasion  to  call  upon  the  covenantor  for  indem- 
nity. Accordingly  the  decision  in  question  has  not  been  followed 
to  any  important  extent  in  America.  The  rule  generally  prevail- 
ing here  is  that  if  possession  of  the  land  actually  passed  from  the 
covenantor  to  the  covenantee  the  subsequent  assignee  will  be  en- 
titled to  the  benefit  of  the  covenant  whether  the  original  covenantor 
was  rightfully  or  wrongfully  seised  of  the  land.71  It  is  a  rule, 
however,  supported  by  the  weight  of  American  authority,  that  a 
covenant  of  warranty  does  not  enure  to  the  benefit  of  an  assignor1 
unless  the  original  covenantor  was  actually  seised  and  possession 


there  was  nothing  with  which  the  covenant  could  run  so  as  to  benefit  an 
assignee.  Judgment  was  entered  for  the  defendant.  Mr.  Rawle  says  that 
this  case  ha«  not  been  followed  by  recent  decisions  in  England,  and  regrets 
that  the  decision,  "  which  was  a  mere  professional  triumph  of  Sir  Edward 
Coke  upon  a  question  of  pleading,  should  have  disturbed  the  courts  of  last 
resort  upon  both  sides  of  the  Atlantic  for  more  than  a  century."  Rawle  Covt. 
«§  232,  236,  citing  Cuthbertson  v.  Irving,  4  Hurl.  &  Norm.  755;  S.  C.,  1 
Smith's  L.  Cas.  136. 

70  Nesbit  v.  Nesbit,  Conf.  Rep.  (N.  C.)  403;  Nesbit  v.  Brown,  1  Dev.  Eq. 
(N.  C.)  30.  BENNING,  J.,  in  Martin  v.  Gordon,  24  Ga.  533. 

"Wilson  v.  Widenham,  51  Me.  566.  Dickinson  v.  Hoomes,  8  Grat.  (Va.) 
353;  Randolph  v.  Kinney,  3  Rand.  (Va.)  397.  Wallace  V.  Pereles,  109  Wis. 
316;  85  N.  W.  Rep.  371.  In  Beddoe  v.  Wadsworth,  21  Wend.  (N.  Y.)  120, 
it  was  held  that  if  possession  was  taken  under  the  deed  and  transferred  by 
a  subsequent  conveyance,  an  action  might  be  maintained  by  the  last  grantee 
upon  the  covenants,  because  such  possession  would  carry  the  covenants  an- 
nexed to  the  land  although  no  title  was  in  fact  in  the  grantor  at  the  time 
of  the  conveyance.  Without  such  possession  there  can  be  no  eviction,  whicli 
is  indispensable  for  laying  the  ground  of  any  action  upon  the.  covenant  of 
warranty.  Moore  v.  Merrill,  17  N.  H.  75;  43  Am.  Dec.  503.  One  cannot 
be  evicted  if  he  has  never  had  either  actual  or  constructive  possession  of  the 
premises.  Matteson  v.  Vaughn,  38  Mich.  373. 


388  MARKETABLE    TITLE    TO    SEAL    ESTATE. 

passed  from  him  to  his  grantee.72  Upon  a  somewhat  similar  prin- 
ciple it  has  been  held  that  if  A.  convey  an  easement  in  the  lands 
of  B.  with  covenants  for  title,  a  grantee  of  the  covenantee  could 
not  have  the  benefit  of  the  covenants,  for,  no  land  having  been 
conveyed,  the  covenants  could  not  "  run  with  the  land  "  in  favor 
of  the  assignee.73 

If  a  person  without  any  title  or  claim  of  title  join  in  a  convey- 
ance of  land  with  covenants  of  warranty,  e.  g.,  where  the  husband 
joins  with  the  wife  in  a  conveyance  of  her  land,  he  will  of  course 
be  bound  upon  his  covenants  to  the  grantee ;  but  it  has  been  held 
that  for  want  of  privity  of  estate,  those  covenants  will  not  run 
with  the  land,  and  that  he  will  not  be  liable  thereon  to  a  remote 
grantee  of  the  premises;  in  other  words,  that  a  covenant  of  war- 
ranty entered  into  jointly  by  one  assuming  to  be  the  owner  of  the 
fee,  and  a  stranger  to  the  title  will  not  run  with  the  land  as 
against  the  stranger,  and  will  not  be  available  in  favor  of  a  sub- 
sequent grantee  who  holds  no  assignment  of  the  cause  of  action 
arising  from  the  breach.74 

"Slater  v.  Rawson,  1  Met.  (Mass.)  455.  Hacker  v.  Storer,  8  Gr.  (Me.) 
228;  McConaughey  v.  Bennett,  50  VV.  Va.  172;  40  S.  E.  Rep.  540,  and  cases 
cited  in  last  note.  The  last  grantee,  whose  grantor  was  in  actual  possession, 
may  sue  the  original  grantor  upon  a  breach  of  the  covenant,  though  the 
latter  was  not  in  possession  at  the  time  of  his  conveyance.  Tillotson  v. 
Prichard,  60  Vt.  94;  14  Atl.  Rep.  302.  The  case  of  Wead  v.  Larkin,  54  111. 
489;  5  Am.  Rep.  149,  contains  a  vigorous  attack  upon  the  proposition  stated 
in  the  text.  In  that  case  the  land  conveyed  was  vacant  and  unoccupied,  and 
it  appeared  that  the  original  covenantors  had  never  been  in  possession.  Pos- 
session Avas  taken  by  the  grantee,  who  reconveyed  the  premises  to  the  plain- 
tiff, who,  upon  eviction,  brought  an  action  on  the  covenant  of  the  original 
grantor.  Judgment  was  rendered  for  the  plaintiff,  the  court  disapproving 
the  decision  in  Slater  v.  Rawson,  supra. 

"Wheelgck  v.  Thayer,  16  Pick.  (Mass.)  68.  Disapproved  in  Wilson  v. 
Cochran,  46  Pa.  St.  233.  See  Rawle  Covts.  (5th  ed.)  207,  n. 

74Mygatt  v.  Coe,  124  N.  Y.  212;  26  N.  E.  Rep.  611,  distinguishing  Noke  v. 
Awder,  supra.  In  this  case  the  defendant  joined  with  his  wife  in  a  convey- 
ance of  land  claimed  to  be  hers,  and  warranted  the  title.  The  land  passed 
through  mesne  conveyances  to  the  plaintiff,  who  was  evicted  by  one  having 
title  paramount  to  the  defendant's  wife,  and  who  thereupon  brought  this 
action  on  the  covenants  in  the  original  deed  executed  by  defendant  and  wife. 
The  court  held  that  defendant  (husband)  being  a  stranger  to  the  title,  his 
covenant  of  warranty  did  not  run  with  the  land,  and  that  consequently  there 
could  be  no  recovery  against  him.  There  was  a  learned  dissenting  opinion 
by  BRADLEY,  J.,  with  whom  concurred  HAIGIIT  and  BBOWN,  JJ. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       389 

§  162.  Assignee  not  affected  by  equities  between  covenantor 
and  covenantee.  The  assignee  cannot,  except  in  the  case  of  a 
release  by  the  covenantee,  be  affected  by  any  agreement  between 
the  covenantor  and  the  covenantee  by  which  the  liability  of  tho 
former  is  lessened  ;75  for  example,  an  agreement  at  the  time  of  the 
covenant  that  the  covenantee  should  pay  off  an  incumbrance  on 
the  premises,  as  part  of  the  consideration  ;76  or  that  the  consider 
tion  to  be  paid,  should  be  less  than  that  expressed  in  the  convey- 
ance containing  the  covenant.77  There  seems  to  be  no  very  clear 
reason  why  a  release  -by  the  covenantee  should  be  sustained  as 
against  an  assignee  without  notice;  such  an  act  appears  to  be 
clearly  within  the  spirit  of  the  rule  that  the  assignee  cannot  be 
affected  by  equities  between  the  original  parties  of  which  he  has 
notice,78  and  has  been  held  to  be  within  a  statute  providing  that  a 
deed  concerning  lands,  tenements  and  hereditaments,  must  be 
recorded  in  order  to  bind  a  subsequent  purchaser  without  notice.79 

§  163.  Covenant  extinguished  by  reconveyance  to  covenantor. 
If  the  covenantee  reconvey  to  the  covenantor,  or  if  by  act  of  the 
law  or  otherwise  the  premises  be  again  vested  in  the  covenantor, 
the  covenant  of  warranty  is  extinguished.80  Thus,  it  has  been 
held  that  if  A.  convey  to  B.  with  warranty,  and  B.  then  reconveys 
to  A.  with  warranty,  the  last  covenant  can  only  protect  A.  against 
a  title  from  or  under  B.  subsequent  to  A.'s  conveyance  to  him. 
If  A.  is  evicted  in  consequence  of  a  defect  in  the  title  prior  to 
that  time,  he  cannot  recover  against  B.  on  the  covenant  contained 
in  the  last  conveyance ;  his  own  covenant  would  be  a  complete 
bar  to  the  suit.81  But  in  order  that  the  reconveyance  shall  extin- 

"Suydam  v.  Jones,  10  Wend.  (N.  Y.)  181;  25  Am.  Dec.  552.  Brown  v. 
Staples,  28  Me.  497 ;  48  Am.  Dec.  504.  Eveleth  v.  Crouch,  15  Mass.  307. 

n  Suydam  v.  Jones,  supra. 

"Greenvault  v.  Davis,  4  Hill  (N.  Y.),  643.  111.  Land  Co.  v.  Bonner,  91 
111.  114.  Hunt  v.  Orwig,  17  B.  Mon.  (Ky.)  73;  66  Am  Dec.  144. 

"Kellogg  v.  Wood,  4  Paige  Ch.   (N.  Y.)   578. 

n  Susquehanna  Coal  Co.  v.  Quick,  61  Pa.  St.  339.  See,  also,  Field  v.  Snell, 
4  Cush.  (Mass.)  50. 

88  Co.  Litt.  490a;  Bac.  Abr.  Warranty,  O.,  p.  413.  Goodel  v.  Bennett.  22 
Wis.  565.  Silvernian  v.  Loomis,  104  111.  137.  Carroll  v.  Carroll.  113  Iowa, 
419;  85  N  W.  Rep.  639;  Green  v.  Edwards  (Tex.  Civ.  App.),  39  S.  W.  Rep. 
1005. 

"Kellogg  v.  Wood,  4  Paige  Ch.   (N.  Y.)   614. 


390  MARKETABLE    TITLE    TO    REAL    ESTATE. 

guish  the  covenant,  the  parties  must  be  the  same.  If  two  grant 
lands  with  warranty  and  the  grantee  reconveys  to  one  of  the 
grantors  with  warranty,  the  first  warranty  is  not  thereby 
extinguished.82  Xeither  is  there  a  release  of  the  covenant  where 
the  reconveyance  is  made  in  a  representative  capacity  only.83  J^or 
does  a  reconveyance  by  the  grantee,  by  way  of  mortgage,  to  the 
grantor,  extinguish  the  warranty  in  the  original  deed;  the  bene- 
fit of  such  covenant  passes  to  a  purchaser  at  a  sale  under  the 
mortgage.84 

Pleading.  An  assignee  in  suing  on  a  covenant  of  warranty, 
should  set  out  the  deed  containing  the  covenant  declared  on,  and 
then  derive  title  to  himself  through  the  intermediate  conveyances, 
naming  them  and  giving  their  dates,  but  it  is  not  necessary  that 
the  operative  parts  or  the  formalities  of  the  execution  of  such 
conveyances  should  be  set  forth.85 

§  164.  MEASURE  OF  DAMAGES.  General  rules.  The  measure 
of  damages  in  an  action  against  the  vendor  for  breach  of  a  contract 
for  the.  sale  of  personal  property  is  the  difference  between  the 
contract  price  and  the  market  price.86  A  contrary  rule  with 
respect  to  personal  property  would  seriously  embarrass  commercial 
transactions  by  holding  out  a  strong  temptation,  to  the  seller  to 
violate  his  contract,  pay  the  purchase  price  in  damages  to  the 
buyer,  and  place  in  his  own  pockets  the  increase  in  value  of  the 
goods.  Such  also  is  the  rule  of  damages  for  breach  of  an  execu- 
tory contract  for  the  sale  of  lands  where  the  vendor  wilfully  and 
wrongfully  refuses  to  convey  to  the  purchaser,  or  sells  the  estate 
knowing  that  by  reason  of  a  defective  title  he  will  not  be  able 
to  perform  his  contract.87  But  a  case  in  which  the  estate  was  sold 
;ind  conveyed  by  the  vendor  in  good  faith  believing  his  title  to  be 
good,  is  considered  to  stand  upon  different  grounds;  and  if  the 
estate  be  afterwards  lost  to  the  purchaser  through  a  failure  of  the 

"Bac.  Abr.  451,  n.;  1  Co.  Inst.  393a;  Prest.  Touch.  201.  Birney  v.  Hann, 
3  A.  K.  Marsh.  (Ky.)  322;  13  Am.  Dec.  167. 

"Curtis  v.  Hawley,  85  111.  App.  429. 

"Wiggins  v.  Fender,  132  X.  C.  628;  44  N.  E.  Eep.  362;  Wesco  v.  Kern 
(Oreg.),  59  Pac.  Rep.  548. 

86  Williams  v.  Weatherbee,  1  Aik.   (Vt.)   233. 

"Sedg.  Dam.,  p.  365. 

17  Sedg.  Dam.,  §  1010.  Ante,  §  97. 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.       391 

title,  the  vendor  will  only  be  liable  to  him  in  damages  for  the 
value  of  the  land  at  the  time  the  contract  was  made,  to  be  meas- 
ured by  the  purchase  price,  without  regard  to  the  increased  value 
of  the  land  at  the  time  of  the  loss  of  the  estate,  whether  caused 
by  a  general  rise  in  the  value  of  lands,  or  by  improvements  placed 
thereon  by  the  purchaser.  This  is  the  rule  in  case  of  a  breach 
of  an  executory  contract  for  the  sale  of  lands ;  of  a  breach  of  the 
covenant  of  seisin;88  and  of  the  covenants  of  warranty  and  for 
quiet  enjoyment,89  except  that  in  certain  of  the  New  England 

M  As  to  executory  contracts  see  ante,  §  90,  as  to  the  covenant  of  seisin, 
ante,  §  116,  and  the  cases  cited  in  the  following  note.  Except  in  certain  of 
the  New  England  States  the  rule  of  damages  for  breach  of  the  covenant  of 
seisin  where  there  has  been  an  eviction  and  those  of  warranty  and  for  quiet 
enjoyment  is  the  same.  4  Kent  Com.  462,  465.  King  v.  Kerr,  5  Ohio,  160; 
22  Am.  Dec.  77.  Brandt  v.  Foster,  5  Iowa,  297.  Cox  v.  Strode,  2  Bibb  (Ky.), 
275 ;  5  Am.  Dec.  603.  It  has  been  deemed  better  to  separate  the  cases  arising 
under  the  covenants  of  seisin  and  of  warranty,  and  to  treat  the  rule  of  dam- 
ages with  respect  to  each  covenant  separately,  but  the  cases  cited  to  the  one 
may  be  considered  with  profit  in  the  examination  of*  the  other. 

"  Field  Dam.  §  461 ;  Rawle  Covt.  §  164 ;  1  Sedgw.  Dam.  238 ;  2  Sutherland 
Dam.  280;  Waite's  Act.  &  Def.  401.  Cox  v.  Strode,  2  Bibb.  (Ky.),  275;  5 
Am.  Dec.  603;  Booker  v.  Bell,  3  Bibb  (Ky.),  176;  6  Am.  Dec.  641;  Cum- 
mings  v.  Kennedy,  3  Litt.  (Ky.)  125;  14  Am.  Dec.  45;  Pence  v.  Duval,  9  B. 
Mon.  (Ky.)  48;  Hanson  v.  Buckner,  5  Dana  (Ky.),  254;  29  Am.  Dec.  401; 
Robertson  v.  Lemon,  2  Bush  (Ky.),  301.  Stout  v.  Jackson,  2  Rand.  (Va.) 
132,  where  the  question  was  for  the  first  time  directly  presented  in  Virginia. 
There  was  an  able  opinion  by  GREEN,  J.,  announcing  the  rule  stated  in  the 
text,  and  disapproving  the  dicta  to  the  contrary  in  Mills  v.  Bell,  3  Call  (Va.), 
322,  and  other  early  cases.  COALTEB,  J.,  dissented.  The  rule  settled  in  this 
case  remains  unchanged  in  Virginia.  Thompson  v.  Guthrie,  9  Leigh  (Va.), 
101;  33  Am.  Dec.  225;  Threlkeld  v.  Fitzhugh,  2  Leigh  (Va.)  451;  Jackson 
v.  Turner,  5  Leigh  (Va.),  126;  Lowther  v.  Com.,  1  Hen.  &  Munf.  (Va.)  202; 
Click  v.  Green,  77  Va.  827.  Moreland  v.  Metz,  24  W.  Va.  137;  49  Am.  Rep. 
24<5;  Butcher  v.  Peterson,  26  W.  Va.  447;  53  Am.  Rep.  89.  Barnett  v. 
Hughey  (Ark.),  15  S.  W.  Rep.  464.  Brown  v.  Dickerson,  12  Pa.  St.  372; 
McClure  v.  Gamble,  27  Pa.  St.  288;  Cox  v.  Henry,  32  Pa.  St.  18.  Doyle  v. 
Brundred,  189  Pa.  St.  113;  14  Atl.  Rep.  1107.  Holmes  v.  Sinnickson,  3  Gr. 
(N.  J.  L.)  313;  Hulse  v.  White,  1  Cox  (N.  J.  L.),  173;  Drake  v.  Baker,  34 
N.  J.  L.  360.  Willson  v.  Willson,  5  Fost.  (N.  H.)  229;  57  Am.  Dec.  320;  . 
Drew  v.  Towle,  30  N.  H.  531;  64  Am.  Dec.  309;  Nutting  v.  Herbert,  35  N.  H. 
120.  Kinney  v.  Watts,  14  Wend.  (N.  Y.)  38;  Peters  v.  McKeon,  4  Den.  (N. 
Y.)  550;  Hymes  v.  Van  Cleef,  15  N.  Y.  Supp.  341 ;  the  head  note  to  this  case 
is  misleading.  May  v.  Wright,  1  Overt.  (Tenn.)  385,  semble;  Elliott  v. 
Thompson,  4  Humph.  (Tenn.)  98;  40  Am.  Dec.  630;  McGuffey  v.  Humes,  85 
Tenn.  26;  1  S.  W.  Rep.  506.  Dickens  v.  Shepherd,  3  Murph.  (N.  C.)  326. 
Henning  v.  Withers,  3  Brev.  (S.  C.)  458;  6  Am.  Dec.  589;  Furman  v.  El- 


392  MABKETABLE    TITLE    TO    BEAL    ESTATE. 

States  the  covenantee  is  allowed  the  value  of  the  estate  at  tin* 
time  of  eviction,  in  case  of  a  breach  of  the  covenant  of  warranty 
or  for  quiet  enjoyment.90  In  those  States,  however,  the  rule  of 
damages  for  a  breach  of  the  covenant  of  seisin  is  the  same  as  that 

more,  2  Nott  &  McC.  (S.  C.)  189;  Lourance  v.  Robertson,  10  S.  C.  12.  Davi* 
v.  Smi€h,  5  Ga.  274;  47  Am.  Rep.  279.  A  very  exhaustive  opinion  was  de- 
livered in  this  case,  reviewing  the  doctrines  of  the  ancient  common  law  appli- 
cable to  the  rule  stated  in  the  text.  Simpson  v.  Balvin,  37  Tex.  685.  Kemp- 
ner  v.  Lumber  Co.,  20  Tex.  Civ.  App.  307;  49  S.  W.  Rep.  412.  Roberts  v. 
McFadden  (Tex.  Civ.  App.),  74  S.  W.  Rep.  105.  Clark  v.  Parr,  14  Ohio,  118; 
45  Am.  Dec.  529;  McAlpin  v.  Woodruff,  11  Ohio  St.  120.  Stebbins  v.  Wolf, 
33  Kans.  7C5;  7  Pac.  Rep.  542;  Doom  v.  Curran,  52  Kans.  360;  34  Pac.  Rep. 
118.  Dalton  v.  Bowker,  8  Nev.  190;  Hoffman  v.  Bosch,  18  Nev.  360.  Brandt 
v.  Foster,  5  Iowa,  297;  Swafford  v.  Whipple,  3  Gr.  (lo.)  261;  54  Am.  Dec. 
498.  Stark  v.  Olney,  3  Oreg.  88.  Lloyd  v.  Sandusky,  203  111.  621 ;  68  N.  E. 
Rep.  154.  Sheets  v.  Andrews,  2  Bl.  (Ind.)  274;  Reese  v.  McQuilkin,  7  Ind. 
450;  Phillips  v.  Reichert,  17  Ind.  120;  79  Am.  Dec.  463;  Burton  v.  Reeds,  20 
Ind.  87;  Wood  v.  Bibbins,  58  Ind.  392;  McClure  v.  McClurc,  05  Ind.  487; 
Boatman  v.  Wood,  50  Ind.  403,  right  to  interest  on  the  purchase  money. 
Donlon  v.  P/vans,  40  Minn.  501;  42  N.  W.  Rep.  472,  semble.  Martin  v.  Long, 
3  Mo.  391;  Dunnica  v.  Sharp,  7  Mo.  71;  Tong  v.  Matthews,  23  Mo.  437; 
Lambert  v.  Estes,  99  Mb.  604;  13  S.  W,  Rep.  284.  Blossom  v.  Knox,  3 
Pinney  (Wis.),  262  (3  Chand.  295)  ;  Conrad  v.  Trustees,  64  Wis.  258;  25  N. 
W.  Rep.  24.  Griffin  v.  Reynolds,  17  How.  (U.  S.)  609;  Patrick  v.  Leach,  1 
McCrary  (U.  S.),  250.  Cheney  v.  Straube,  35  Nebr.  521;  53  N.  W.  Rep.  479. 
Holmes  v.  Sinnickson  (Nebr.),  100  N.  W.  Rep.  417.  West  Coast  Mfg.  Co.  v. 
West  Coast  Imp.  Co.,  31  Wash.  610;  72  Pac.  Rep.  455.  The  following  obser- 
vations by  CAIJR,  J.,  in  Threlkeld  v.  Fitzhugh,  2  Leigh  (Va.),  461,  are  a 
forcible  example  of  the  arguments  employed  by  those  who  maintain  that  the 
evicted  purchaser  is  not  entitled  to  damages  for  the  increased  value  of  the 
estate:  "When  land  is  sold  the  existing  state  of  things,  the  present  value 
and  situation  of  the  land,  are  the  subjects  in  the  minds  of  the  parties;  it  a* 
this  land  as  it  now  is  that  is  bought  and  sold  and  warranted.  It  is  most 
natural  then  to  suppose  that  the  parties  mean  that  the  purchase  money,  the 
standard  of  value  to  which  they  have  both  agreed  in  the  sale,  shall  be  the 
measure  of  compensation  if  the  land  be  lost.  They  seldom  look  into  futurity 
to  speculate  upon  the  chances  of  a  rise  or  fall  in  value.  If  they  did  the 
views  of  buyer  and  seller  would  probably  be  very  different;  and,  whatever 
they  might  be,  could  form  no  part  of  the  contract,  nor  enter  into  its  con- 
struction. What  is  it  that  the  seller  warrants?  the  land  itself.  Does  this 
warranty,  either  by  force  of  its  terms  or  by  the  intention  of  the  parties,  ex- 
tend to  any  future  value  which  the  lands  may  reach  when  they  have  become 
the  site  of  a  populous  city,  are  covered  with  expensive  buildings,  or  mines  of 
gold  have  been  found  in  their  bowels?  Such  a  state  of  things  was  probably 
not  dreamed  of.  And  how  can  these  subsequent  accessions  be  the  subject  of 
a  warranty  made  when  they  had  no  existence,  nor  were  even  in  the  contempla- 
tion of  the  parties" 
90  Post,  §  165. 


COVENANTS    OF    WARBANTY    AND    FOE    QUIET    ENJOYMENT.       393 

Avhich.  prevails  in  the  other  States.  At  common  law  upon  a  loss 
of  the  estate  by  eviction  under  a  paramount  title,  the  remedy  of 
the  tenant  upon  the  warranty  of  the  lord  of  the  fee  was  by  writ 
of  warrantia  chartce  in  which  he  had  restitution  of  other  lands  to 
the  amount  of  those  which  he  had  lost.  Damages  were  not  recov- 
erable, unless  the  warrantor  were  unable  to  make  restitution  in 
kind,  and  then  the  warrantee  was  allowed  nothing  for  improve- 
ments or  for  the  increased  value  of  the  land.91  By  the  civil  law 
the  vendor,  whether  with  or  without  fault,  is  bound  to  indemnify 
the  purchaser  to  the ,  full  extent  of  his  loss,  which,  of  course, 
includes  improvements  and  the  increased  value.92  An  apparent 
exception  to  the  rule  that  the  measure  of  damages  for  a  breach 
of  the  covenant  of  warranty  is  the  value  of  the  land  at  the  time 
of  the  conveyance  exists  where  the  covenant  of  warranty  is  con- 
tained in  a  mortgage  or  deed  of  trust  to  secure  the  payment  of  a 
debt.  In  such  a  case  the  value  of  the  land  at  the  time  of  the 
eviction  is  the  measure  of  the  covenantee's  damages,  provided  that 
value  do  not  exceed  the  amount  of  the  debt  secured.93  It  is  obvious, 
however,  that  in  such  a  case  the  debt  secured  is,  for  this  purpose, 
treated  as  the  equivalent  of  a  price  paid  for  the  land.  If  the 
transaction  between  the  grantor  and  the  grantee  consisted  of  an 
exchange  of  lands,  the  agreed  value,  or  if  none,  the  market  value 

"Gore  v.  Brazier,  3  Mass.  523;   3  Am.  Dec.  182. 

M  Hale  v.  New  Orleans,  18  La.  Ann.  321. 

"Thus,  in  Haffey  v.  Birchetts,  11  Leigh  (Va.),  89,  a  distinction  was  drawn 
between  a  breach  of  a  covenant  of  warranty  contained  in  a  deed  of  bargain 
and  sale  and  such  a  covenant  in  a  deed  of  trust  to  secure  a  debt,  the  court 
holding  that  in  the  latter  case  the  measure  of  damages  was  the  value  of  the 
premises  at  the  time  of  the  eviction.  "  In  case  of  a  sale  the  measure  is  the 
value  at  the  time  of  the  sale,  and  the  test  of  this  value  is  the  purchase  money. 
But  in  the  case  of  an  incumbrance  this  principle  can  have  no  application, 
for  price  is  not  a  subject  of  adjustment  in  the  treaty  for  a  security.  Ade- 
quacy is  alone  inquired  into.  The  true  measure  of  damages,  therefore,  in  case 
of  eviction  by  superior  title,  is  the  value  of  the  mortgaged  or  trust  subject 
at  the  time  of  eviction,  provided  it  do  not  exceed  the  amount  of  the  debt 
secured,  for  it  is  obvious  that  the  creditor  can  never  be  damaged  to  a  greater 
amount  than  that."  Thus,  if  the  land  at  the  time  of  the  execution  of  the 
deed  of  trust  was  of  the  value  of  $1,000,  the  debt  secured  was  $2.000,  and  the 
land  had  increased  in  value  to  $2.000  at  the  time  of  the  eviction,  the  bene- 
ficiary would  be  entitled  to  the  sum  of  $2,000  as  damages.  There  is  no  in- 
justice in  this  result,  the  covenantor  being  liable  for  the  whole  $2,000  at  all 
events. 


MARKETABLE    TITLE    TO    REAL    ESTATE, 

of  the  lands  given  in  exchange,  is  the  measure  of  damages  on  evic- 
tion from  the  lands  received  in  exchange." 

It  is  to  be  observed  that  the  rule  generally  prevailing  through- 
out the  United  States,  denies  to  the  covenantee  upon  a  breach  of 
any  of  the  covenants  for  title,  any  recovery  in  damages  for  the 
increased  value  of  the  land,  whether  arising  from  extrinsic  causes, 
or  resulting  from  the  labor  and  skill  of  the  covenantee,  and  the 
improvements  which  he  may  have  placed  on  the  land.  The  rule 
is  rested  largely  upon  the  presumed  intention  of  the  parties.*5 
They  contract  with  reference  to  the  present  value  of  the  estate, 
and  if  the  covenantee  has  any  apprehensions  as  to  the  title  and 
the  safety  of  his  bargain,  he  should  require  special  covenants  to 
protect  himself  from  loss.**  The  apparent  hardship  of  the  rule  is 
lessened  by  several  considerations.  Thus,  if  the  covenantee  knew 
the  title  was  bad,  he  took  the  risk  of  losing  his  improvements,*7 
and  if  he  forebore  an  examination  and  remained  ignorant  of  the 
state  of  the  title,  it  was  his  own  fault  and  calls  for  an  application 
of  the  maxim  that  where  one  of  two  innocent  parties  must  suffer 
a  loss,  he  whose  negligence  made  the  loss  possible  must  bear  it. 
And  again,  in  many  if  not  all  of  the  States,  there  are  statutes 
that  give  to  the  evicted  covenantee  the  right  to  an  allowance  for 

•*  Looney  v.  Reeves,  5  Kans.  App.  279 ;  48  Pac.  Rep.  606. 

"Phillips  v.  Smith,  Car.  Law  Rep.  (N.  C.)  475;  6  Am.  Dec.  542,  where  it 
was  said  that  nothing  could  be  more  unreasonable  than  to  compute  the  dam- 
ages in  a  manner  not  contemplated  by  the  parties  at  the  time  of  the  contract, 
and  which,  if  foreseen,  would  have  broken  off  their  negotiations.  The  cove- 
nantor is  not  compelled  to  pay  a  greater  amount  than  the  consideration  paid 
to  him,  because  he  is  held  to  have  contracted  with  reference  to  that  value, 
and  the  question  is  one  of  intention.  Lourance  v.  Robertson,  10  S.  C.  19; 
Ware  v.  Weatherell,  2  McC.  (S.  C.)  415. 

—  "  If  the  vendee  does  not  choose  to  rely  on  the  common  covenants,  but  to 
be  secured  also  for  the  increase  in  value  of  the  land  and  any  improvements 
he  may  put  on  it,  let  him  insist  on  particular  covenants  expressly  guaran- 
teeing to  him  such  increase  and  improvements."  CARB,  J.,  in  Threlkeld  v. 
Fitzhugh,  3  Leigh  (Va.),  462.  BROXSOX,  J.,  in  Kelly  v.  Dutch  Church,  2 
Hill  (N.  Y.),  116.  In  Nesbit  v.  Brown,  1  Dev.  Eq.  (N.  C.)  30,  it  was  held 
that  a  covenant  to  pay  in  case  of  eviction  double  the  purchase  money,  and  also 
all  damages  thence  accruing,  was  a  penalty  and  not  stipulated  damages,  and 
that  the  purchase  money  and  interest  only  could  be  recovered.  There  is 
nothing  in  the  case,  however,  to  show  that  the  parties  may  not  stipulate  for 
actual  damages  sustained  in  excess  of  the  purchase  money  and  interest. 

*  Conrad  v.  Trustees,  64  Wis.  258 ;  25  N.  W.  Rep.  24. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       395 

the  value  of  his  permanent  improvements  as  against  the  successful 
claimant  of  the  premises.98 

If  the  covenantor  was  guilty  of  fraud  in  the  procurement  and 
execution  of  the  contract  of  sale,  and  the  fraud  shall  not  have  been 
waived  by  the  acceptance  of  a  conveyance  and  covenants  for  title 
with  knowledge  thereof,  the  covenantee  may  in  a  special  action  on 
the  case  for  the  deceit,  recover  damages  to  the  full  extent  of  any 
loss  he  may  have  sustained,  including  the  value  of  his  improve- 
ments and  the  increased  value  of  the  land."  In  the  action  of 
covenant,  which  sounds  altogether  in  contract,  the  plaintiff  cannot 
introduce  evidence  of  fraud  on  the  part  of  the  vendor  for  the 
purpose  of  aggravating  the  damages.1 

The  value  or  purchase  price  agreed  upon  by  the  parties  is  the 
measure  of  damages  and  not  the  value  of  the  lands  at  the  time  of 
the  conveyance.  The  execution  of  the  conveyance  may  for  many 
reasons  be  postponed  or  omitted  until  long  after  the  contract  has 
been  completed  by  the  purchaser,  but  the  delay  in  that  respect  will 
not  entitle  him  to  a  larger  measure  of  damages.2 

*  In  Cox  v.  Strode,  2  Bibb  (Ky.),  278;  5  Am.  Dec.  603,  it  was  said  by  the 
court  on  this  point :  "  So  far  as  the  increase  of  value  has  been  the  effect  of 
improvements  made  by  the  purchaser,  he  ought  to  be  remunerated,  but  jus- 
tice requires  that  this  remuneration  should  be  made  by  the  successful  claim- 
ant, for  nemo  debet  locupletari  aliena  jactura  is  a  maxim  of  universal  jus- 
tice adopted  and  enforced  by  our  law.     If  the  purchaser  came  within  the 
statute  concerning  occupying  claimants,  the  legislature  has  provided  such  a 
compensation   to   be   made  by   the  successful   claimant   as  they   deem   just. 
*     *     *     If  he  wilfully  or  supinely  neglects  to  pursue  the  remedy  which  the 
law  has  given  against  the  successful  claimant  he  ought  to  abide  the  loss,  and 
not  be  permitted  to  found  upon  his  own  negligence,  a  claim  to  an  additional 
compensation  against  the  seller." 

••Bender  v.  Fromberger,  4  Dall.  (Pa.)  444.  The  measure  of  damages,  where 
the  grantor  pointed  out  incorrect  boundaries,  inclosing  more  land  than  he 
actually  owned  and  conveyed,  is  the  difference  between  the  value  of  the  land 
actually  conveyed,  and  of  that  inclosed  by  the  boundaries  pointed  out,  without 
regard  to  the  contract  price.  King  v.  Bressie  ( Tex.  Civ.  App. ) ,  32  S.  W. 
Rep.  729. 

1  2  Bl.  Com.  166,  Rawle  Covt.  §  159.  Carvill  v.  Jacks,  43  Ark.  439.  But 
see  May  v.  Wright,  1  Overt.  (Tenn.)  390,  an  action  on  a  covenant  of  war- 
ranty in  which  it  was  said  that  if  the  jury  fovind  that  the  covenantor  when 
he  sold  knew  that  he  had  no  title  to  the  land,  it  was  a  fraud,  and  that  the  jury 
might  give  such  damages  as  they  thought  would  make  the  covenantee  whole. 

*  But  see  Cummins  v.  Kennedy,  3  Litt.    (Ky. )    125;    14  Am.  Dec.  45,  the 
court  saying:  "The  general  rule  settled  by  a  current  of  authorities  is,  that 


396  MARKETABLE    TITLE    TO    REAL    ESTATE. 

Nominal  damages  only  for  a  breach  of  the  covenant  of  war- 
ranty can  be  recovered  against  one  who  conveyed  the  land  without 
consideration,  as  between  the  original  parties.3  Thus,  one  TO  whom 
the  land  had  been  conveyed  by  direction  of  the  purchaser,  to  secure 
the  grantee  for  money  loaned  to  the  purchaser  with  which  to  pay 
the  purchase  price,  and  who,  after  repayment  of  the  loan,  recon- 
veyed  to  the  purchaser  with  covenant  of  general  warranty,  was 
held  liable  for  nominal  damages  only  upon  the  eviction  of  the 
purchaser  by  an  adverse  claimant.4  It  has  been  held,  however, 
in  a  case  in  which  a  money  consideration  was  stated  in  the  deed, 
the  real  consideration  being  love  and  affection,  that  the  damages 
for  a  breach  of  the  covenant  of  warranty  must  be  measured  by  the 
consideration  stated.5  And  where  the  consideration  was  paid  in 
stock  of  a  fictitious  value,  the  actual  value  of  the  stock  on  the  day 
of  sale  was  held  to  be  the  measure  of  the  covenantee's  damages.6 
The  grantor  is  not  relieved  from  liability  on  his  covenant  of  war- 
ranty by  the  fact  that  he  received  only  a  part  of  the  consideration, 
and  that  the  other  part  went  to  a  third  person,  who  acted  as  his 
agent  for  the  sale  of  the  premises.7  If  a  valuable  consideration 
be  in  fact  paid,  the  grantor  wall  be  liable  upon  his  warranty  with- 
out regard  to  the  parties  receiving  the  consideration,  or  the  manner 
of  its  appropriation.8  And  the  fact  that  the  grantor  bought  the 
premises  and,  for  the  same  consideration  that  he  paid,  conveyed 

as  the  conveyance  completes  the  sale,  the  value  of  the  land  conveyed,  at  'the 
date  of  the  conveyance,  with  interest  and  costs,  forms  the  criterion  of  dam- 
ages; and  also  that  the  price  stipulated  is  the  best  evidence  of  that  value. 
And  where  the  parties  have  shown  that  price  in  the  conveyance  it  would  not 
perhaps  be  going  too  far  to  say  that  they  ought  to  be  concluded  by  it.  Hence, 
if  the  consideration  was  paid  long  before  the  date  of  the  deed,  still  if  it  is 
expressed,  it  would  fix  the  criterion,  though  the  land  when  conveyed  had 
greatly  risen  in  value." 

3  West  v.  West,  76  N.  C.  45.     One  to  whom  a  deed,  absolute  on  its  face,  is 
«xecuted  as  collateral  security  for  a  debt  due  to  a  third  person,  is  put  upon 
notice  of  the  character  of  the  transaction  by  the  recital  of  the  consideration, 
and  cannot  recover  as  a  bona  fide  purchaser  on  a  warranty  contained  in  the 
deed.     He  is  bound  to  know  that  he  has  received  such  consideration  as  is 
stated  in  the  deed.     Parke  v.  Chadwick,  8  W.  &  S.   (Pa.)  96. 

4  West  v.  West,  76  N.  C.  45. 

'Hanson  v.  Buckner,  4  Dana  (Ky.),  254;  29  Am.  Dec.  401. 
•McGuffey  v.  Humes,  85  Tenn.  26;   1  S.  W.  Rep.  506. 
'Rash  v.  Jenne  (Oreg.),  37  Pac.  Rep.  538. 
•Bloom  v.  Wolfe,  50  Iowa,  286. 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.      397 

them  to  the  grantee  at  the  request  of  third  persons,  for  a  particular 
purpose,  will  not  relieve  him  from  liability  on  his  covenant.  If  a 
third  person  chooses  to  execute  a  covenant  of  warranty  under  such 
circumstances,  he  must  abide  the  consequences.9 

The  fact  that  the  land  was  bought  for  a  particular  purpose 
known  to  the  vendor  can  make  no  difference  in  respect  to  the 
measure  of  damages  for  a  breach  of  the  covenant  of  warranty.10 
The  covenantor  may  show  in  mitigation  of  damages  that  a  tract 
of  land  to  which  he  had  no  title  was  by  mistake  included  in  the 
conveyance  by  him.11  Also,  that  the  covenantee  has  received  from 
the  adverse  claimant,  by  way  of  refund,  taxes,  penalties,  etc., 
charges  upon  the  land  paid  by  the  covenantor,  which  he  would 
have  been  entitled  to  recover  from  such  claimant.12  In  some  cases 
it  has  been  held  that  damages  for  a  breach  of  covenants  for  title 
must  be  assessed  according  to  the  law  of  the  place  where  the 
granted  premises  lie;13  in  others,  according  to  the  rule  in  force 
in  the  State  in  which  the  action  is  brought;14  and  in  others,  ac- 
cording to  the  law  of  the  place  where  the  contract  was  made.1' 
The  last  would  seem  to  be  the  better  rule,  at  least  more  just  and 
equitable  in  its  results,  since  it  is  a  fair  presumption  that  the 
parties  contracted  with  reference  to  the  law  of  the  place  where  the 
contract  was  made. 

In  a  case  in  which  the  grantor  and  a  third  person  executed  an 
instrument  obliging  themselves  to  satisfy  any  incumbrances  upon 
the  land,  and  the  grantee  was  evicted  under  an  incumbrance  which 
they  neglected  to  satisfy,  it  was  held  that  his  measure  of  damages 
was  the  value  of  the  land  at  the  time  of  the  eviction.  "  This," 
said  the  court,  ('  is  not  a  covenant  as  to  the  state  of  the  title,  but 
an  agreement  to  do  certain  acts  for  the  plaintiff's  benefit  within 


"Whatley  v.  Patten   (Tex.  Civ.  App.),  31  S.  W.  Rep.  60. 

10  Phillips  v.  Reichert,   17   Ind.  120;   79  Am.  Dec.  463.     Dimmick  v.  Lock- 
wood,  10  Wend.   (N.  Y.)    142. 

11  Leland  v.  Stone,  10  Mass.  459. 

"Danforth  v.  Smith,  41  Kans.  146;  21  Pac.  Rep.  168;  Stebbins  v.  Wolf,  33 
Kans.  765;  7  Pac.  Rep.  542. 

"Tillotson  v.  Pritchard,  60  Vt.  94;  14  Atl.  Rep.  302.  Succession  of  Cas- 
sidy,  40  La.  Ann.  827;  5  So.  Rep.  292. 

"Nichols  v.  Walter,  8  Mass.  243;   Smith  v.  Strong,  14  Pick.    (Mass.)    128. 

"Aiken  v.  McDonald,  (So.  Car.)  20  S.  E.  Rep.  796.  Looney  v.  Reeves, 
5  Kans.  App.  279;  48  Pac.  Rep.  606. 


398  MARKETABLE    TITLE    TO    REAL    ESTATE. 

a  specified  time.  For  the  breach  of  such  an  executory  contract, 
we  know  no  reason  why  the  plaintiff  should  not  be  allowed  to 
recover  such  damages  as  are  the  necessary,  natural  and  proximate 
result  of  the  breach  complained  of."1 

The  failure  of  the  grantee  to  take  possession  of  the  estate  and 
perfect  the  title  by  adverse  possession,  will  not  relieve  the  grantor 
from  liability  upon  his  warranty.17 

The  grantee,  of  course,  may  show,  in  mitigation  of  damages, 
that  before  the  trial  he  had  acquired  the  outstanding  title,  and 
that  the  same,  by  virtue  of  his  warranty,  enured  to  the  benefit 
of  the  grantee.18 

It  will  be  seen  in  a  subsequent  chapter  of  this  work  that  a 
grantee  with  warranty  may,  when  sued  for  the  purchase  money, 
set  up  a  breach  of  tue  warranty  as  a  defense.19  So,  conversely, 
in  an  action  by  the  grantee  on  the  warranty  the  covenantor  may 
set  off  the  unpaid  purchase  inonoy  against  the  plaintiff's  demand.20 

§  165.  Rule  in  New  England  States.  In  the  States  of  Massa- 
chusetts,21 Maine,22  Vermont23  and  Connecticut,24  the  covenantee  is 
permitted  to  measure  his  damages  upon  a  breach  of  the  covenant 

"Manahan  v.  Smith,  19  Ohio  St.  384. 

^Graham  v.  Dyer  (Ky.),  29  S.  W.  Rep.  346   (not  officially  reported). 

"Looney  v.  Reeves,  5  Kan.  App.  279;  48  Pac.  Rep.  406. 

"Post,  ch.  16. 

70  Beecher  v.  Baldwin,  55  Conn.  419 ;  12  All.  Rep.  401.  The  court  said  that 
the  grantee,  in  claiming  substantial  damages,  proceeded  upon  the  theory  that 
she  might  require  the  vendor  to  make  the  title  good,  in  which  event  she  would 
be  obligated  to  pay  the  purchase  money. 

51  Gore  v.  Brazier,  3  Mass.  543;  3  Am.  Dec.  182.  This  is  the  leading  case 
in  Massachusetts.  White  v.  Whitney,  3  Met.  (Mass.)  89;  Cecconi  v.  Rodden. 
147  Mass.  164;  16  N.  E.  Rep.  749.  In  this  case  the  covenantee  was  allowed 
for  improvements  made  by  him  after  the  suit  in  which  he  was  evicted  had 
been  begun,  the  improvements  having  been  made  in  good  faith. 

22  Sweet  v.  Patrick,  12  Me.  1;  Hardy  v.  Nelson,  27  Me.  525;  Elder  v.  True, 
32  Me.  104. 

=3Keeler  v.  Wood,  30  Vt.  242;  Drury  v.  Shumway,  1  D.  Chip.  (Vt.)  110:  1 
Am.  Dec.  704.  In  this  case  it  was  also  held  that  any  amount  the  covenantee 
may  have  recovered  from  the  successful  claimant  for  improvements  must  be 
deducted  from  the  damages.  In  Park  v.  Bates,  12  Vt.  387;  36  Am.  Dec.  347, 
it  was  said  by  the  court  that  none  of  the  ruinous  consequences  attributed  to 
the  rule  measuring  the  damages  by  the  value  of  the  land  at  the  time  of  the 
eviction  had  been  experienced  in  that  State. 

"Horsford  v.  Wright,  Kirby  (Conn.),  3;  1  Am.  Dec.  8.  This  is  one  of  the 
earliest  cases  upon  the  point.  It  merely  announces  the  rule  without  die- 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       390 

of  warranty,  by  the  value  of  the  land  at  the  time  of  his  eviction. 
The  distinction  which  they  make  between  the  covenant  of  war- 
ranty and  the  covenant  of  seisin  is  that  the  latter  covenant  is 
broken  as  soon  as  made  if  the  covenantor  have  no  title,  while  the 
covenant  of  warranty  is  not  broken  until  eviction  under  title  para- 
mount; and  that  the  parties  intend  that  the  damages  shall  be 
measured  by  the  value  of  the  land  at  the  time  when  the  covenant 
is  broken.25  If  the  eviction  is  constructive,  as  where  the  cove- 
nan  tee  is  unable  to  get  possession  of  the  land  by  ejectment  brought 
for  that  purpose,  the  value  of  the  land  at  the  time  the  action  of 
ejectment  was  decided  against  the  plaintiff,  is  the  measure  of  his 
damages.2' 

An  exception  to  the  New  England  rule  giving  damages  for  the 
value  of  the  land  at  the  time  of  eviction,  is  made  in  a  case  where 
the  eviction  results  from  the  enforcement  of  a  mortgage  or  other 
lien,  and  in  which  the  covenantee  has  the  privilege  of  redeeming 
the  land  by  discharging  the  incumbrance  and  the  costs  of  suit. 
Tn  such  a  case  the  measure  of  his  damages  is  the  amount  required 
to  redeem  the  land.27  Were  this  not  so  the  covenantee  might 
recover  the  full  value  of  the  estate  as  damages,  and  then  repossess 

cussing  the  reasons  upon  which  it  is  founded.  Mitchell  v.  Hazen,  4  Conn. 
516;  10  Am.  Dec.  169;  Stirling  v.  Peet,  14  Conn.  245;  Butler  v.  Barnes,  01 
Conn.  399;  24  Atl.  Rep.  328. 

-'"  The  rule  measuring  the  damages  by  the  value  of  the  land  at  the  time  of 
the  eviction  was  recognized  in  Virginia  at  an  early  date,  though  not  expressly 
adopted.  Mills  v.  Bell,  3  Call  (Va.),  320,  obiter,  a  case  of  executory  contract. 
TUCKER,  J.,  in  Nelson  v.  Matthews,  2  Hen.  &  Munf.  (Va.)  164;  3  Am.  Dec. 
i>20.  These  dicta  have  all  been  disapproved  in  later  -cases.  See  ante,  n.  80. 
p.  391.  Damages  Tor  the  value  at  the  time  of  eviction  were  also  allowed  or  tin- 
rule  approved  in  Guerard  v.  Rivers,  1  Bay  (S.  C.),  263,  and  Liber  v.  Par- 
sons, 1  Bay  (S.  C. ),  19,  but  these  cases  were  overruled  by  Furman  v.  Elmorc. 
2  Nott  &  McC.  (S.  C. )  189.  The  consideration  money  with  interest  has  since 
been  made  by  statute  the  rule  of  damages.  Acts  1824,  p.  24;  Earle  v.  Middle- 
ton,  Cheves  (S.  C.),  127.  In  Clark  v.  Whitehead,  47  Ga.  516,  it  seems  that 
under  the  statutory  law  of  that  State  the  grantee  was  held  entitled  to  dam 
ages  for  the  value  of  the  land  at  the  time  of  trial  of  the  action  for  breach  <>i 
covenant.  In  Jones  v.  Shay,  72  Iowa,  237;  33  N.  W.  Rep.  650,  it  was  heM 
error  to  award  damages  in  excess  of  the  purchase  money,  unless  the  plaint  ill' 
averred  and  proved  an  increase  in  the  value  of  the  premises. 

"Park  v.  Bates,  12  Vt.  381;  36  Am.  Dec.  347. 

"Tuft  v.  Adams,  8  Pick.  (Mass.)  549;  White  v.  Whitney,  3  Met.  (Mass,  t 
89;  Thayer  v.  Clemence,  22  Pick.  (Mass.)  490.  Compare  Lloyd  v.  Quimby, 
">  Ohio  St.  2H2. 


400  MARKETABLE    TITLE    TO    REAL    ESTATE. 

himself  of  the  estate  by  redeeming  it  with  a  much  smaller  sum 
of  money. 

The  New  England  rule  as  to  the  measure  of  damages  has  been 
pronounced  unsound  and  has  been  vigorously  assailed  both  by  text 
writers  and  by  the  courts  of  other  States.28  The  reasons  which 
they  urge  against  the  rule  seem  conclusive.  The  decisions  sup- 
porting that  rule  appear  to  have  been  founded  more  upon 
precedent  and  ancient  usage,  than  upon  any  presumed  intention 
of  the  parties,  with  respect  to  the  measure  of  recovery  upon  the 
covenant.29  It  is  not  to  be  denied,  however,  that  the  rule  limiting 
the  damages  to  the  consideration  money  will  in  some  cases  result 
in  hardship  and  injustice.  That  rule  has  been  adopted,  not  as  a 
complete  solvent  of  the  rights  of  the  parties  in  all  cases,  but  as 
the  best  that  could  be  devised  having  regard  to  the  difficulties  of 
the  subject,  and  as  the  least  calculated  to  produce  inequitable 
results.30 

28  See  the  cases  cited  ante,  note  89,  p.  391.  Rawle  Covt.  §  165.  The  learned 
writer  says:  "A  vendor  when  making  them  (the  covenants)  never  dreams  of 
such  an  enlarged  liability  by  reason  of  his  purchaser's  improvements;  and  on 
the  other  hand  the  latter  takes  the  title  for  what  it  is  worth  at  the  time;  he 
makes,  by  his  contract,  the  purchase  money  the  measure  of  the  value  of  the 
title,  and  takes  security  by  means  of  covenants  in  that  amount  and  no  more. 
*  *  *  The  practical  application  of  the  rule  that  the  damages  are  meas- 
ured by  the  value  at  the  time  of  eviction  may,  moreover,  work  injustice  'in 
cases  where  the  property  may  have  depreciated  in  value,  and  in  particular 
where  that  depreciation  may  have  been  owing  to  the  neglect  or  other  fault 
of  the  purchaser.  In  case  he  has  received  a  covenant  for  seisin  and  a  covenant 
for  quiet  enjoyment,  he  can  of  course  sue  upon  either,  or  if  he  sue  upon  both 
lie  is  allowed  to  have  judgment  entered  upon  either.  If  the  property  is  less 
valuable  than  when  he  purchased  it,  he  elects  to  enter  judgment  upon  the 
covenant  for  seisin  and  receives  the  consideration  money,  which  is  far  more 
than  the  property  is  then  worth.  If,  however,  it  has  increased  in  value, 
judgment  is  entered  on  the  covenant  for  quiet  enjoyment."  In  Ware  v. 
Weatherall,  2  McC.  (S.  C.)  246,  it  was  said  by  COLCOCK,  J.:  "It  sounds 
well  to  say  that  if  a  man  be  deprived  of  a  thousand  dollars  worth  of  im- 
provements by  a  defect  in  his  title,  he  who  sold  should  be  compelled  to  make 
it  up.  But  I  ask  if  it  is  not  increasing  the  calamities  of  life  to  make  men 
answerable  for  that  which  the  most  consummate  wisdom  and  incorruptible 
integrity  cannot  guard  against." 

2*  See  the  remarks  of  PARSONS,  C.  J.,  in  Gore  v.  Brazier,  3  Mass.  545,  546 ; 
3  Am.  Dec.  182. 

MStaats  v.  Ten  Eyck,  3  Caines  (N.  Y.),  Ill:  2  Am.  Dec.  254,  where  it  was 
said  by  KENT,  C.  J. :  "  To  find  a  rule  of  damages  in  a  case  like  this  is  a  work 
of  difficulty;  none  will  be  entirely  free  from  objection  or  will  not  at  times 
work  injustice."  McAlpin  v.  Woodruff,  11  Ohio  St.  130. 


COVENANTS    OF    WARRANTY    AND    FOB    QUIET    ENJOYMENT.       401 

§  166.  Assignee's  measure  of  damages.  If  the  action  on  the 
covenant  of  warranty  be  by  an  assignee  of  the  covenantee,  and  the 
consideration  paid  for  the  land  by  the  plaintiff  was  less  than  that 
paid  to  the  covenantor;  that  is,  the  original  purchase  money,  it 
has  been  held  that  the  plaintiff  can  recover  as  damages  only  the 
purchase  price  which  he  paid.31  There  are  cases,  however,  which 
adopt  the  contrary  view,  holding  that  the  value  of  the  premises  is 
conclusively  fixed  by  the  price  paid  to  the  original  covenantor, 
and  that  the  remote  grantee  is  entitled  to  recover  that  amount.32 
But  if  he  paid  more  than  the  original  purchase  money,  he  cannot 
recover  the  excess  on  the  original  covenantor's  warranty.  The 
measure  of  damages  for  which  the  covenantor  is  liable  cannot  be 
increased  by  a  transfer  of  the  land.33 


"Alette  v.  Dow,  9  Lea  (Tenn.),  99.  In  this  case  the  court,  by  COOPER,  J., 
lucidly  observed:  "The  covenant  (warranty)  is  a  peculiar  one,  and  not  like 
an  ordinary  covenant  for  so  much  money.  It  ia  rather  in  the  nature  of  a 
bond  with  a  fixed  sum  as  a  penalty,  the  recovery  on  which  will  be  satisfied 
by  the  payment  of  the  actual  damages.  Each  vendor  subject  to  this  rule  may 
be  treated  as  the  principal  obligor  to  his  immediate  vendee,  and  as  the  surety 
of  any  subsequent  vendee  to  hold  him  harmless  by  reason  of  the  failure  of 
title;  and  the  ultimate  vendee  when  evicted  is  entitled  to  be  subrogated  to 
the  rights  of  his  immediate  vendor  against  a  remote  vendor  to  the  extent 
necessary  to  indemnify  him.  Such  a  vendee,  to  use  the  language  of  the 
Supreme  Court  of  North  Carolina,  sues  a  remote  vendor  on  the  covenant  to 
redress  his,  the  plaintiff's,  own  injuries,  not  the  injuries  of  the  immediate 
vendee  of  such  remote  vendor.  Accordingly,  that  court  held,  in  a  case  like 
the  one  before  us,  that  the  measure  of  damages  was  the  consideration  paid 
by  the  plaintiff  to  his  immediate  vendor,  with  interest,  and  not  the  con- 
sideration paid  by  such  vendor  to  the  defendant.  In  other  words,  the 
damages  recovered  were  limited  to  the  actual  injury  sustained.  Williams 
v.  Beeman,  4  Dev.  (N.  C.)  483."  Phillips  v.  Smith,  1  Car.  Law  Rep.  475. 
Whitzman  v.  Hirsh,  3  Pick.  (Tenn.)  513;  11  S.  W.  Rep.  421.  Moore  v. 
Frankenfield,  25  Minn.  540.  In  Aiken  v.  McDonald,  (So-.  Car.)  20  S.  E. 
Rep.  796,  the  greater  part  of  an  estate  in  the  premises  for  the  life  of  another 
had  been  enjoyed  by  the  original  covenantor,  but  the  value  of  the  entire  life 
estate  was,  nevertheless,  deducted  from  the  assignee's  damages. 

33  Brooks  v.  Black,  68  Miss.  61 ;  9  So.  Rep.  332.  Lourence  v.  Robertson, 
10  So.  Car.  8.  Mischke  v.  Baughn,  52  Iowa,  528;  3  N.  W.  Rep.  543; 
Dougherty  v.  Duval,  9  B.  Mon.  (Ky.)  57.  Hollingsworth  v.  Mexia,  14  Tex. 
Civ.  App.  363;  37  S.  W.  Rep.  455;  Lewis  v.  Ross,  95  Tex.  358;  67  S.  W.  Rep. 
405. 

:3Dickson  v.  Desire,  23  Mo.  16G.  Crisfield  v.  Storr,  36  Mel.  150;  11  Am. 
Rep.  480.  Rogers  v.  Golson,  (Tex.  Civ.  App.)  31  S.  W.  Rep.  200.  Taylor  v. 
Wallace,  (Colo.)  37  Pac.  Rep.  962.  Where  the  purchaser  resold  the  premises 

26 


402 


MARKETABLE    TITLE    TO    HEAL    ESTATE. 


§  167.  True  consideration  may  be  shown.  The  consideration 
stated  in  the  conveyance  is  prima  facie  evidence  of  the  purchase 
price  of  the  land.  But  parol  evidence  is  admissible  to  show  the 
true  consideration,  whether  it  be  greater  or  less  than  that  recited 
in  the  deed.34  It  has  been  said  that  the  only  operation  of  the  con- 
sideration clause  is  to  prevent  a  resulting  trust  in  the  grantor  and 
to  estop  him  to  deny  the  deed  for  the  uses  therein  mentioned.35 

and  directed  the  conveyance  to  be  made  to  the  sub-purchaser,  which  was  done, 
and  the  sub-purchaser  was  evicted,  it  was  held  that  the  measure  of  his 
damages  against  the  grantor  was  the  price  paid  by  him  (plaintiff,  sub- 
purchaser)  to  the  original  purchaser,  and  not  that  which  the  latter  was  to 
pay  to  the  grantor.  Cook  v.  Curtis,  68  Mich.  611;  36  N.  W.  Rep.  692. 

"Bingham  v.  Weiderwax,  1  Const.  (N.  Y.)  509;  McRea  v.  Purmont,  16 
Wend.  (N.  Y.)  460;  Shepherd  v.  Little,  14  Johns.  (N.  Y.)  210;  Petrie  v. 
Folz,  54  N.  Y.  Super.  Ct.  223,  229.  Morse  v.  Shattuck,  4  N  H.  229 ;  17  Am. 
Dec.  419;  Nutting  v.  Herbert,  35'  N.  H.  127;  Estabrook  v.  Smith,  6  Gray 
(Mass.)  572;  66  Am.  Dec.  443.  Moore  v.  McKie,  5  Sm.  &  M.  (Miss.)  238. 
Swafford  v.  Whipple,  3  Gr.  (lo.)  261;  54  Am.  Dec.  498;  Williamson  v.  Test, 
24  Iowa,  138;  Wachendorf  v. '  Lancaster,  66  Iowa,  458;  23  N.  W.  Rep.  922. 
Barrett  v.  Hughey,  (Ark.)  15  S.  W.  Rep.  464.  Garrett  v.  Stuart,  1  McCord 
(S.  C.),  514.  Devine  v.  Lewis  (Minn.),  35  N.  W.  Rep.  711.  Guinotte  v. 
Choteau,  34  Mo.  154;  Henderson  v.  Henderson,  13  Mo.  151.  Wilson  v. 
Shelton,  9  Leigh  (Va.),  342.  Holmes  v.  Seaman  (Neb.),  100  N.  W.  Rep. 
417;  Lloyd  v.  Sandusky,  95  111.  App.  593.  Martin  v.  Gordon,  24  Ga.  533. 
In  this  case  the  real  consideration  was  much  less  than  that  stated  in  the 
deed.  In  Stark  v.  Olney,  3  Oreg.  88,  the  consideration  expressed  in  the  deed 
was  $2,000,  but  the  plaintiff  recovered  only  $507.  In  Staples  v.  Dean,  114 
Mass.  125,  it  appeared  that  Sylvester,  not  being  the  owner  of  a  lot,  sold  and 
agreed  to  convey  it  to  Staples  for  about  $950.  Sylvester  then  purchesed  the 
lot  from  the  real  owner,  Dean,  for  $450,  and  caused  him  to  convey  it  to 
Staples  with  covenant  of  seisin,  the  deed  expressing  a  consideration  of  $950. 
The  title  having  failed,  Staples  brought  an  action  on  the  covenant,  and 
claimed  that  the  consideration  named  in  the  deed  was  the  measure  of  his 
damages.  The  defendant  Dean  was  permitted  to  show  the  facts  in  the  case, 
:ind  the  court  held  that  the  measure  of  damages  was  the  value  of  the  land  at 
the  time  of  the  conveyance,  or,  at  the  plaintiff's  election,  the  amount  actually 
received  by  the  defendant,  $450.  There  are  a  few  early  cases  holding  gener- 
ally that  the  consideration  of  a  deed  cannot  be  inquired  into,  but  they  are  no 
longer  regarded  as  authority.  Among  others  may  be  named  Steele  v.  Adams, 
1  Gr.  (Me.)  1;  Clarke  v.  McAnulty,  3  S.  &  R.  (Pa.)  367;  Schermerhorn  v. 
Vanderheyden,  1  Johns.  (N.  Y.)  139;  3  Am.  Dec.  304.  Of  course,  however,, 
parol  evidence  cannot  be  received  to  show  that  a  deed  is  void  for  want  of  a 
consideration.  Parol  evidence  as  to  the  consideration  can  only  be  received 
when  it  is  offered  for  some  purpose  other  than  that  of  defeating  the  con- 
veyance. Betts  v.  t-nion  Bank,  1  Harr.  &  Gill  (Md.),  175;  18  Am.  Dec.  283.. 
Wilt  v.  Franklin,  1  Binney  (Pa.),  502;  2  Am.  Dec.  474. 

**Belden  v.  Seymour,  8  Conn.  304;  21  Am.  Dec.  661. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       403 

Evidence  of  a  secret  understanding  between  the  covenantor  and 
the  covenantee,  by  which  the  liability  of  the  former  upon  the 
covenant  is  lessened,  cannot,  however,  be  received  as  against  an 
assignee  of  the  covenant,  that  is,  a  subsequent  purchaser  from  the 
covenantee.36  If  no  consideration  be  expressed  in  the  deed,  ex- 
trinsic evidence  may,  of  course,  be  resorted  to  for  the  purpose  of 
showing  the  purchase  price.37  If  the  consideration  cannot  be  ascer- 
tained, the  value  of  the  land  at  the  time  of  the  conveyance,  with 
interest,  will  be  the  measure  of  damages.38  But  parol  evidence 
cannot  be  received  to  show  that  at  the  time  of  the  conveyance  the 
covenantee  was  aware  of  the  objections  to  the  title  of  his  grantor, 
or  of  the  existence  of  incumbrances  upon  the  property,  and  had 
verbally  agreed  that  in  case  of  an  eviction  there  should  be  no 
liability  upon  the  covenantor.39  It  is  competent,  however,  for 
the  grantor  to  show  by  parol  that  a  part  of  the  land,  to  which 
there  was  no  title,  had  been  included  in  the  deed  by  mistake,  and 
that  no  consideration  was  paid  for  it.  But  such  evidence  is  ad- 
missible only  in  mitigation  of  damages,  and  not  for  the  purpose 
of  negativing  a  breach  of  the  covenant.40 

If  the  consideration  be  paid  in  something  other  than  money,  the 
actual  value  of  the  consideration  so  received  will  be  the  measure 
of  the  covenantee's  damages.  Thus,  where  the  consideration  was 

"Greenvault  v.  Davis,  4  Hill   (N.  Y.),  647. 

"Smith  v.  Strong,  14  Pick.    (Mass.)    128. 

» Smith  v.  Strong,   14  Pick.    (Mass.)    128. 

"Estabrook  v.  Smith,  6  Gray  (Mass.),  578;  46  Am.  Dec.  443.  Nutting  v. 
Herbert,  35  N.  H.  264.  Suydam  v.  Jones,  10  Wend.  (N.  Y.)  184;  25  Am.  Dec. 
552.  In  Collingwood  v.  Irwin,  3  Watts  (Pa.),  306,  it  was  held  that  the  de- 
fendant could  not  show  by  parol  that  at  the  time  he  executed  the  deed  he 
assigned  to  the  grantee  a  judgment  against  a  third  person,  which  the  grantee 
accepted  as  sole  security  for  the  title  and  agreed  never  to  hold  the  grantor 
liable  on  the  covenant.  And  in  Townsend  y.  Weld,  8  Mass.  146,  it  was  held 
that  parol  evidence  is  inadmissible  to  show  that  the  conevantee  was  aware  of 
the  defect  of  the  covenantor's  title  and  that  he  had  ngreed  that  the  cove- 
nantor should  not  be  charged  in  the  event  of  an  eviction. 

"Rawle  Covts.  for  Title  (5th  ed.),  §  174;  Lloyd  v.  Sandusky,  203  111.  621 : 
68  N.  E.  154,  a  case  in  which  the  grantor  was  permitted  to  show  that  the 
grantee  knew,  at  the  time  of  the  conveyance,  that  the  coal  and  minerals  under 
the  surface  had  been  previously  conveyed  away;  that  the  value  of  such  coal 
and  minerals  was  excluded  in  fixing  the  purchase  price,  and  that  nn  excep- 
tion of  such  coal  and  minerals  had  been  omitted  from  the  conveyance  by 
mistake.  See,  also,  Rook  v.  Rook,  111  111.  App.  H08. 


MARKETABLE    TITLE    TO    REAL    ESTATE. 

i 

paid  in  railroad  bonds,  worth  less  than  par,  the  measure  of  dam- 
ages was  held  to  be  the  actual  market  value  of  the  bonds  at  the 
time  of  the  payment.41 

§  168.  Measure  of  damages  where  the  covenantee  buys  in 
the  paramount  title.  The  law  does  not  require  the  covenantee  to 
submit  to  an  actual  eviction  by  legal  process  at  the  suit  of  the  real 
owner,  as  a  condition  precedent  to  the  recovery  of  damages  for 
the  loss  of  the  estate.  He  is  constructively  evicted,  and  his  right 
of  action  is  complete  if  he  yields  up  the  possession  upon  the 
demand  of  the  true  owner.42  Upon  the  same  principle  he  is  per- 
mitted to  buy  in  the  outstanding  title  and  to  recover  as  damages 
the  amount  necessarily  and  in  good  faith  expended  for  that  pur- 
pose.43 "  There  seems  to  be  no  difference  in  principle  between 
yielding  up  the  possession  to  him  who  owns  the  paramount  title, 
and  fairly  purchasing  that  title,  so  far  as  respects  the  right  to 
recover  damages  on  the  warranty."4  But  he  can  in  no  case  recover 
damages  in  excess  of  the  amount  paid  by  him  to  the  adverse  claim- 
ant,45 or  in  excess  of  the  purchase  price  of  the  land.48  Prima 

"Montgomery  v.  Northern  Pac.  R.  Co.,  67  Fe'd.  Rep.  445. 

42  Ante,  §  148. 

"Mayne  Dam.  (Wood's  ed.)  286;  Field  Dam.  378,  et  seq.  Rawle  Cort. 
§  192.  Smith  v.  Compton,  3  B.  &  Aid.  407.  Leffingwell  v.  Elliott,  10  Pick. 
(Mass.)  204.  Loomis  v.  Bedell,  11  N.  H.  74.  Spring  v.  Chase,  22  Me.  505; 
39  Am.  Dec.  505.  Turner  v.  Goodrich,  26  Vt.  709.  Sanders  v.  Wagner,  32 
N.  J.  Eq.  506.  Dale  v.  Shively,  8  Kans.  190;  McKee  v.  Bain,  11  Kans.  577. 
Lawton  v.  Howe,  14  Wis.  269.  Baker  v.  Corbett,  28  Iowa,  318,  obiter,  case  of 
executory  contract.  Weber  v.  Anderson,  73  111.  439.  Beaseley  v.  Phillips,  20 
Ind.  App.  182;  50  N.  E.  Rep.  488.  Leet  v.  Gratz,  92  Mo.  App.  422.  In  Law- 
less v.  Collier,  19  Mo.  480,  it  was  held  that  if  the  grantee  buys  in  the  adverse 
title,  the  price  paid  is  the  measure  of  his  damages  for  breach  of  the  covenant 
of  seisin,  but  if  he  assigned  the  covenants  in  his  grantor's  deed  as  part  of 
the  consideration  for  the  adverse  paramount  title,  the  assignee  will  be  entitled 
to  the  full  amount  of  the  purchase  money.  And  in  Nolan  v.  Feltman,  12 
Bush.  (Ky.)  119,  it  was  held  that  if  through  equities  derived  from  the 
grantor,  such  as  a  claim  against  the  true  owner  for  improvements,  the 
grantee  subjects  the  premises  to  sale  and  buys  them  himself,  he  will  be 
treated  as  purchasing  for  the  grantor's  benefit,  and  can  only  recover  on  the 
warranty  what  it  cost  him  to  perfect  the  title  in  this  way. 

"Donnell  v.  Thompson,  1  Fairf.    (Me.)    176;  25  Am.  Dec.  216. 

45  Farmers'  Bank  v.  Glenn,  68  N.  C.  39  and  cases  cited  in  note  43  above. 
Cox  v.  Henry,  32  Pa.  St.  18.  James  v.  Lamb  (Tex.),  21  S.  W.  Rep.  172. 
Bush  v.  Adams,  22  Fla.  177. 

"Elliott  v.  Thompson,  4  Humph.  (Tenn.)  98.  McGary  v.  Hastings,  39 
Cal.  360;  2  Am.  Rep.  456.  Richards  v.  Iowa  Homestead  Co.,  44  Iowa,  304; 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       405 

facie  the  covenantee  has  a  right  to  recover  damages  to  the  amount 
of  the  consideration  expressed  in  the  deed.  It  devolves  upon  the 
defendant  to  show  that  the  covenantee  got  in  the  outstanding  title 
at  a  price  less  than  that  sum.47  The  right  of  the  covenantee  to 
recover  is  not  affected  by  the  fact  that  he  bought  up  the  title  after 
the  commencement  of  his  action  upon  the  warranty.48  And  he  is 
not  only  entitled  to  recover  the  sum  paid  to  the  holder  of  the 
better  title,  but  he  may  have  back  other  necessary  expenses  in- 
curred in  acquiring  the  right  of  the  true  owner.49  But  while  the 
covenantee  may  buy  in  the  paramount  title  he  does  so  at  his  own 
risk,  and  the  burden  devolves  upon  him  to  show  that  the  title  so 
acquired  is  one  to  which  he  must  have  inevitably  yielded.59  The 
rule  in  this  respect  is  the  same  as  that  which  applies  in  case  of  a 
voluntary  surrender  of  the  premises  to  the  adverse  claimant. 

The  right  to  buy  in  the  paramount  title  is  the  privilege  and  not 
the  duty  of  the  covenantee.  Therefore,  his  refusal  to  purchase 
the  title  when  offered  to  him  on  moderate  terms  cannot  be  shown 
in  defense  of  his  action  on  the  warranty.51 

The  rule  that  the  covenantee  can  have  credit  only  for  the 
amount  paid  by  him  to  get  in  the  outstanding  title,  and  that  the 
title  so  acquired,  except  to  this  extent,  enures  to  the  benefit  of 
the  grantor,  has  been  held  not  to  apply  where  the  subject  of  the 
contract  ^vas  public  land  title  to  which  had  never  been  divested 
from  the  State.  The  reason  for  this  doctrine  is  that  the  public 
lands  are  not  a  lawful  subject  of  private  contract,  and  an  at- 
tempted conveyance  thereof  by  one  private  person  to  another 
passes  no  interest  whatever,  and  does  not  create  the  relation  of 
vendor  and  vendee,  and,  therefore,  cannot  be  held  to  furnish  a 

24  Am.  Rep.  745.  Clapp  v.  Herdman,  25  111.  App.  509.  Williams  v.  Thomas, 
21  Ky.  L.  Rep.  1228;  54  S.  W.  Rep.  824. 

47 Hunt  v.  Orwig,  17  B.  Mon.   (Ky.)   73;  66  Am.  Dec.  144. 

"Leffingwell  v.  Elliott,   10  Pick.    (Mass.)    204;    19  Am.  Dec.  343. 

"Dillahunty  v.  Little  Rock,  etc.,  R.  Co.,  59  Ark.  699;  27  S.  W.  Rep.  1002, 
and  28  S.  W.  Rep.  657.  See,  generally,  the  cases  cited,  ante,  this  section. 

80  Richards  v.  Iowa  Homestead  Co.,  44  Iowa,  304 ;  24  Am.  Rep.  745. 

"Norton  v.  Babcock,  2  Met.  (Mass.)  510.  Buck  v.  Clements,  16  Ind.  132. 
Lloyd  v.  Quimby,  5  Ohio,  265.  Stewart  v.  Drake,  4  Halst.  (N.  J.)  143. 
Miller  v.  Halsey,  2  Gr.  (N.  J.  L.)  48.  Sanders  v.  Wagner,  32  N.  J.  Eq.  506. 


406  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

consideration  for  the  purchase  price  of  the  premises.52  In  such  a 
case  the  rule  that  the  purchaser  cannot  deny  the  vendor's  title 
does  not  apply,  even  though  the  grantee  knew  that  the  title  was 
in  the  government  when  the  deed  was  made,  and  had  himself  at 
that  time  taken  steps  to  acquire  the  lands  as  a  homestead.53  There 
is,  however,  a  conflict  of  authority  upon  this  point.54  In  a  case 
in  which  the  contract  was  executory,  the  supreme  court  of  the 
United  States  held  that  the  purchaser,  who  perfected  the  title 
by  making  entry  of  the  land  after  he  discovered  the  invalidity 
of  a  patent  under  which  his  vendors  claimed;  could  recover  only 
the  amount  paid  by  him  in  obtaining  a  patent.  The  court  held, 
also,  that  having  undertaken  to  defeat  the  title  of  his  vendors  by 
claiming  the  land  as  his  own,  he  could  not  recover  the  costs  of 
entering  and  surveying  the  land,  as  he  might  have  done  if  he  had 
brought  an  action  affirming  the  contract,  instead  of  attempting  to 
rescind.55  There  would  seem  to  be  no  reason  why  the  principles 
of  this  decision  should  not  apply  equally  to  a  case  in  which  the 
contract  had  been  executed  by  a  conveyance,  and  the  grantee  seeks 
to  recover  on  the  covenants  for  title. 

The  covenantee  cannot  recover  money  which  he  paid  out  to 
extinguish  the  paramount  title,  unless  the  payment  had  that  effect ; 
so  held  in  a  case  in  which  the  outstanding  interest  was  vested  in 
minors,  and  the  value  of  such  interest  was  paid  to  their  guardian, 
under  an  order  of  court  to  convey  the  interest  of  his  wards  to  the 
covenantee,  the  court  having  no  power  to  enter  such  an  order.56 

§  169.  Measure  of  damages  for  loss  of  term.  The  rule  that 
the  covenantee  upon  eviction  is  not  entitled  to  damages  for  the 
increased  value  of  the  land,  has  been  held  in  l^ew  York  and  else- 
where not  to  apply  in  case  of  a  breach  of  a  covenant  for  quiet 

51  Lamb  v.  James,  87  Tex.  485 ;  29  S.  W.  Rep.  647,  citing  Wheeler  v.  Styles, 
28  Tex.  240;  Rogers  v.  Daily,  46  Tex.  582;  Palmer  v.  Chandler,  47  Tex.  333; 
Houston  v.  Dickinson,  16  Tex.  81.  See,  also,  Kans.  Pac.  R.  Co.  v.  Dunmeyer, 
19  Kans.  543.  Barr  v.  Greeley,  52  Fed.  Rep.  926,  obiter;  Montgomery  T. 
Northern  Pac.  R.  Co.,  67  Fed.  Rep.  445.  Spier  v.  Lanman,  27  Tex.  205. 
(Compare,  Ellis  v.  Crossley,  119  Fed.  Rep.  779.) 

" Dillahunty  v.  Little  Rock,  etc.,  R.  Co.    (Ark.),  27  S.  W.  Rep.  1002. 

"Post,  §§  202,  220.     Holloway  v.  Miller,  84  Miss.  776;  36  So  Rep:  531. 

"Galloway  v.  Finlay,  12  Pet.  (U.  S.)  264.  Thedgill  v.  Pintard,  12  How. 
(U.  S.)  24. 

"Leet  v.  Gratz,  92  Mo.  App.  422. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       407 

enjoyment  contained  in  a  lease,  the  lessee  in  case  of  eviction  by 
title  paramount  being  held  entitled  to  damages  for  the  value  of 
his  unexpired  term  over  and  above  the  rent  reserved."  A  similar 

"Clarkson  v.  Skidmore,  46  N.  Y.  297.  Clark  v.  Fisher,  54  Kans.  403;  38 
Pac.  Rep.  493.  Fritz  v.  Pusey,  31  Minn.  368;  18  N.  W.  Rep.  94.  Wetzel  v. 
Richcreek  (Ohio),  40  N.  E.  Rep.  1004.  Sheets  v.  Joyner  (Ind.),  38  N.  E. 
Rep.  830.  Damages  for  the  value  of  the  unexpired  term  over  and  above  the 
rent  reserved  were  allowed  in  Mack  v.  Patchin,  42  N.  Y.  167 ;  1  Am.  Rep. 
506  (1870).  The  decision,  however,  seems  to  have  been  rested  largely  upon 
the  want  of  good  faith  in  the  lessor  and  his  connivance  at  the  eviction  of  the 
lessee  by  foreclosure  of  a  mortgage  on  the  demised  premises.  (See  the  com- 
ments on  this  decision  in  Lannigan  v.  Kille,  97  Pa.  St.  120;  39  Am.  Rep. 
797.)  The  case  has  been  much  cited,  and  justifies  the  following  copious 
extract  from  the  opinion  of  EABLE,  C.  J. :  "  Ordinarily  in  an  action  against 
the  vendor  of  real  estate  for  breach  of  the  covenant  of  warranty  the  vendee 
can  recover  only  the  consideration  paid  and  interest  for  not  exceeding  six 
years;  and  when  the  contract  of  sale  is  executory,  no  deed  having  been  given, 
in  cases  where  no  part  of  the  purchase  money  has  been  paid,  the  vendee 
can  recover  only  nominal  damages;  and  in  cases  where  the  purchase  money 
has  been  paid,  he  can  recover  the  purchase-money  interest  and  nominal  dam- 
ages. In  an  action  by  the  lessee  against  the  lessor  for  breach  of  the  covenant 
for  quiet  enjoyment,  the  lessor  can  ordinarily  recover  only  such  rent  as  he 
has  advanced,  and  such  mesne  profits  as  he  is  liable  to  pay  over ;  and  in  cases 
where  the  lessor  is  sued  for  a  breach  of  a  contract  to  give  a  lease  or  to  give 
possession,  ordinarily  the  lessee  can  recover  only  nominal  damages  and  some 
incidental  expenses,  but  nothing^  for  the  value  of  his  lease.  These  rules, 
however  much  they  may  be  criticised,  must  be  regarded  as  settled  in  this  State. 
But  at  an  early  day  in  England  and  in  this  country  certain  cases  were  de- 
clared to  be  exceptions  to  these  rules,  or,  more  properly  speaking,  not  to  be 
within  them;  as  if  the  vendor  is  guilty  of  fraud,  or  can  convey,  but  will  not, 
either  from  perverseness  or  to  secure  a  better  bargain;  or  if  he  has  cove- 
nanted to  convey  when  he  knew  he  had  no  authority  to  contract  to  convey; 
or  where  it  is  in  his  power  to  remedy  a  defect  in  the  title  and  he  refuses  or 
neglects  to  do  so;  or  when  he  refuses  to  incur  expenses  which  would  enable 
him  to  fulfill  his  contract.  In  all  these  cases  the  vendor  or  lessor  is  liable 
to  the  vendee  or  lessee  for  the  loss  of  the  bargain  under  rules  analogous  to 
those  applied  in  the  sale  of  personal  property.  *  *  *  In  this  case  the 
defendant  resided  in  Buffalo,  where  the  real  estate  was  located,  and  he 
owned  the  real  estate  at  the  time  he  made  the  lease;  and,  in  the  absence  of 
any  proof  to  the  contrary,  he  must  be  presumed  to  have  known  of  the  mort- 
gages upon  the  real  estate  at  the  time  he  made  the  lease.  He  is,  therefore, 
within  the  rule  of  law  above  alluded  to,  liable  to  the  damages  awarded 
against  him,  because  he  gave  the  lease  knowing  of  the  defect  in  his  title 
*  *  *  When  he  gave  this  lease,  if  he  acted  in  good  faith,  he  must  have  in- 
tended in  some  way  to  have  taken  care  of  these  mortgages;  and  because  he 
did  not  do  so,  having  the  ability,  so  far  as  appears,  to  do  so,  he  should  be  held 
liable  to  the  damages  recovered.  He  not  only  failed  to  do  his  duty  to  the 


MARKETABLE    TITLE    TO    KEAL    ESTATE. 

rule  has  been  applied  in  England58  in  such  cases.  A  different  rule 
formerly  prevailed  in  Xew  York;  the  earlier  cases  hold  that  the 
rent  reserved  for  the  residue  of  the  unexpired  term  is  the  measure 
of  the  lessee's  damages.59  The  late  cases  would  seem  to  establish 
the  better  doctrine.  They  proceed  upon  the  ground  that  the  rule 
caveat  emptor  does  not  apply  as  between  lessor  and  lessee.  It  is 
not  customary  for  the  lessee  to  examine  the  title,  even  if  he  were 
allowed  to  do  so.  It  may  be  observed,  too,  that  no  very  serious 
consequences  can  flow  from  a  rule  that  gives  the  lessee  the  benefit 
of  the  actual  value  of  the  term,  for  it  is  but  seldom  that  the  annual 
value  of  the  premises  is  found  to  be  in  excess  of  the  rent  reserved ; 
and  leases  are  for  the  most  part,  of  short  duration  in  localities 
where  the  rental  value  of  the  property  is  likely  to  increase. 

If  the  lessee  is  liable  to  the  true  owner  for  mesne  profits,  he 
may  recover  back  the  rent  he  has  paid  to  the  lessor,  as  damages 
for  breach  of  the  covenant  for  quiet  enjoyment.60  It  seems  that, 

plaintiff  in  any  of  the  respects  here  indicated,  but  went  actively  to  work  to 
remove  him  from  the  premises,  and  succeeded  in  doing  so."  In  McAllister  v. 
Landers,  70  Cal.  79;  11  Pac.  Rep.  105,  where  a  lessee  was  evicted  under  judg- 
ment in  favor  of  one  having  older  title,  it  was  held  that  his  damages  for 
breach  of  the  covenant  for  quiet  enjoyment  could  not  be  less  than  the  judg- 
ment for  damages  and  costs  against  himself. 

"Williams  v.  Burrell,  1  Com.  B.  402;  Lock  v.  Furze,  19  Com.  B.  (N.  S.) 
96 ;  S.  C.  on  appeal,  L.  R.,  1  C.  PI.  441 ;  Rolph  v.  Crouch,  L.  R.  3  Exch.  44. 

"Kelly  v.  Dutch  Church,  2  Hill  (N.  Y.),  105;  Kinney  v.  Watts,  14  Wend. 
(N.  Y.),  38.  In  Moak  v.  Johnson,  1  Hill  (N.  Y.),  99,  the  rule  established 
by  these  cases  seems  to  have  been  reluctantly  admitted.  The  same  rule  has 
been  announced  in  other  States.  Lanigan  v.  Kille,  79  Pa.  St.  120;  39  Am. 
Rep.  797.  McAlpine  v.  Woodruff,  11  Ohio  St.  120.  Lanigan  v.  Kille,  supra, 
was  a  case  of  great  hardship.  A  lessee  had  erected  extensive  and  costly  im- 
provements for  mining  purposes  on  the  demised  premises  under  an  agreement 
by  which  he  had  the  right  to  remove  the  improvements  at  the  end  of  the 
term.  After  some  years'  enjoyment  of  the  estate  the  lessee  was  evicted  by 
the  true  owner.  After  the  eviction,  in  an  action  by  the  latter  against  the 
lessor  for  mesne  profits,  the  defendant  (lessor)  was  allowed  the  value  of  the 
improvements  as  a  set-off  against  the  plaintiff's  demand.  The  lessee  then 
brought  an  action  on  his  implied  covenant  for  quiet  enjoyment,  claiming 
damages  for  the  increased  value  of  the  term  by  reason  of  the  improvements. 
The  court  held  that  the  consideration,  that  is,  the  rent  reserved,  was  the 
measure  of  the  lessee's  damages,  and  that  as  the  improvements  were  to  be 
the  property  of  the  lessee  at  the  end  of  the  term  they  could  not  be  treated  as 
the  consideration  of  the  lease,  and  the  only  rent  reserved  being  a  royalty,, 
the  plaintiff  was  entitled  to  no  more  than  nominal  damages. 

*  Kelly  v.  Dutch  Church,  2  Hill    (N.  Y.),  105. 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.       409 

if  he  has  paid  no  rent,  he  can  only  recover  nominal  damages  in 
case  of  eviction,  with  costs  incurred  in  defending  the  title.81 

A  purchaser  who  pays  an  annual  ground  rent  instead  of  a  sum 
in  gross  will,  if  deprived  of  the  premises  by  the  eviction  of  the 
lessor,  his  heirs  or  assigns,  be  absolved  from  the  payment  of  the 
rent  in  toto.62  If  he  be  deprived  of  a  part  of  the  premises,  or  pay 
off  an  incumbrance  of  less  amount  than  the  ground  rent,  he  will 
be  entitled  to  an  abatement  of  the  rent  for  such  time  as  shall  be 
sufficient  for  his  indemnity.63 

§  170.  Measure  of  damages  on  eviction  from  part  of  the  land. 
If  the  covenantee  be  evicted  from  part  only  of  the  warranted 
premises,  the  measure  of  his  damges  will  be,  not  the  average  price 
paid  per  acre  for  the  whole  tract,  but  such  a  proportion  of  the 
whole  consideration  paid  as  the  value  of  the  part  to  which  the 
title  fails  bore  at  the  time  of  the  purchase  to  the  whole  purchase 
price.64  The  rule  is  the  same  whether  the  action  be  for  breach  of 

"Moak  v.  Johnson,  1  Hill    (N.  Y.),  99. 

Tranciscus    v.    Reigart,    4    Wattes     (Pa.),    116. 

"Garrison  v.  Moore,   1  Phila.    (Pa.),  282. 

"Sedg.  Dam.  (8th  ed.)  112;  Rawle  Covt.  (5th  ed.)  §  187.  Morris  v. 
Phelps,  5  Johns.  (N.  Y.),  49,  56;  4  Am.  Dec.  323;  Guthrie  v.  Pugsley,  12 
Johns  (N.  Y.),  126;  Giles  v.  Dugro,  1  Duer  (N.  Y.),  331;  Adams  v.  Conover, 
22  Hun  (N.  Y.),  424;  affd.,  87  N.  Y.  422;  41  Am.  Rep.  381.  Compare  Mohr 
v.  Parmelee,  43  N.  Y.  Super.  Ct.  320,  where  it  is  said  that  "  the  damages  are 
limited  to  a  sum  which  bears  to  the  whole  consideration  of  the  conveyance 
the  same  ratio  which  the  size  of  the  part  of  the  premises  as  to  which  there 
is  a  failure  of  title  bears  to  the  size  of  the  entire  tract  attempted  to  be 
conveyed."  This  seems  to  leave  the  relative  value  of  the  part  lost  out  of 
consideration.  Stahley  v.  Irvine,  8  Barr  ( Pa. ) ,  500.  In  Terry  v.  Drabenstadt, 
68  Pa.  St.  400,  it  was  held  that  if  the  covenantee  was  evicted  of  one-third 
of  the  land  by  a  widow  claiming  dower,  the  measure  of  his  damages  will  be 
the  value  of  the  widow's  life  interest,  taking  the  purchase  money  as  the 
basis  of  the  estimate.  Weber  v.  Anderson,  73  111.  439;  Wadhams  v.  Inness, 
4  111.  App.  646.  Lloyd  v.  Sandusky,  203  111.  621;  68  N.  E.  Rep.  154. 
Hynes  v.  Packard,  92  Tex.  44;  45  S.  W.  Rep.  562.  Hoffman  v.  Kirby,  136 
Cal.  26;  68  Pac.  Rep.  321.  Messer  v.  Oestrich,  52  Wis.  694;  10  N.  W 
Rep.  6.  If  the  part  lost  have  valuable  improvements  on  it,  the  value  of 
that  part  including  the  improvements  will  be  the  measure  of  damages.  Semple 
v.  Wharton,  68  Wis.  626;  32  N.  W.  Rep.  690,  correcting  an  inadvertent  mis- 
statement  of  the  rule  in  Messer  v.  Oestrich,  supra.  Ela  v.  Card,  2  N.  H. 
175;  9  Am.  Dec.  46;  Partridge  v.  Hatch,  18  N.  H.  494.  The  rule  as  stated 
in  the  head  note  to  this  case  is  misleading,  and  is  not  sustained  by  the 
opinion."  Winnipiseogee  Paper  Co.  v.  Eaton,  65  N.  H.  13  >  18  Atl.  Rep.  171. 


410  MARKETABLE    TITLE    TO    REAL    ESTATE. 

the  covenant  of  seisin  or  the  covenant  of  warranty.  Of  course, 
there  is  no  room  for  the  application  of  this  rule  where  the  estate 
lost  consists  of  an  undivided  interest.  One  undivided  moiety  can 
be  of  no  greater  value  than  the  other.  In  such  a  case,  the  damages 

Wheeler  v.  Hatch,  12  Me.  389;  Blanchard  v.  Blanchard,  48  Me.  174.     Cornell 
v.  Jackson,  3  Gush.   (Mass.)   506;  Lucas  v.  Wilcox,  135  Mass.  77.     Hubbard 
v.  Norton,  10  Conn.  422.     Hunphreys  v.  McClenachan,  1  Munf.    (Va.)    493; 
Crenshaw  v.   Smith,  5   Munf.    (Va.)    415.     Butcher  v.   Peterson,   26   W.   Va. 
447;  53  Am.  Rep.  89.     But,  in  Kelly  v.  Price,  22  W.  Va.  247,  it  was  said 
that  the  compensation   should  be  allowed   at  the  rate  of  the  average   price 
paid   for   the  whole  tract.     Phillips  v.  Reichert,   17   Ind.    120;    79   Am.  Dec. 
463;   Hoot  v.  Spade,  20  Ind.  326.     Brandt  v.  Foster,  5  Iowa,  287.     Wallace 
v.  Talbot,  1  McCord   (S.  C.),  466.     Dickens  v.  Shepherd,  3  Murph.   (N.  C.) 
526.    Grant" v.  Hill,  (Tex.  Civ.  App.),  30  S.  W.  Rep.  952.    Griffin  v.  Reynolds, 
17   How.    (U.   S.)    609.     Dubay   v.   Kelly,    (Mich.),   100   N.   W.   Rep.   677; 
Loiseau  v.  Threlstad,  14  S.  Dak.  257;  85  N.  W.  Rep.  189;  West  Coast  Mfg. 
Co.  v.   West  Coast  Imp.    Co.,   31    Wash.  610,   72   Pac.  Rep.  455;    Southern 
Wood   Mfg.    Co.    v.    Davenport,    50    La.    521;    23    So.    Rep.    448.     Morris   T. 
Phelps,   supra,   is   the  leading  case  on  this   point.     There   it  was  held   that 
where  there  was  a  want  of  title  only  a£  to  part  of  the  land  conveyed,  the 
damages  ought  to  be  apportioned  to  the  measure  of  value  between  the  land 
lost  and  'the  land  preserved,  and  not  according  to  the  number  of  acres  lost 
and  the  number  preserved.     "  Suppose,"  said   Chief  Justice  KENT,  "  a  valu- 
able stream  of  water  with  expensive  improvements  upon  it,  with  ten  acres 
of   adjoining  barren   land,   was   sold   for   $10,000,   and   it   should   afterwards 
appear   that   the   title   to   the   stream   with   tlie   improvements   on   it   failed, 
but  remained  good  as  to  the  residue  of  the  land,  would  it  not  be  unjust 
that  the  grantee   should  be  limited   in  damages  under  his  covenants   to  aa 
apportionment  according  to  the  number  of  acres  lost,  when  the  sole  induce- 
ment was  defeated,  and  the  whole  value  of  the  purchase  had  failed?     So, 
on  the  other  hand,  if  only  the  title  to  the  nine  barren  acres  failed,  the  vendor 
would  feel  the  weight  of  extreme  injustice,  if  he  was  obliged  to  refund  nine- 
tenths  of  the  consideration."     In  Major  v.  Dunnavant,  25  111.  234,  the  con- 
sideration money  embraced  two  tracts  of  land,  one  of  two  hundred  and  the 
other  of  eighty  acres.     The  title  to  the  eighty-acre  tract  failed.     "  Assuming,'' 
said  the  court,  "  that  the  proof  shows  that  the  two  hundred  acres  were  worth 
$5,000,  and  the  80  acres  were  worth  $100,  and  the  price  paid  for  the  whole 
was  $6,000,  then  there  was  the  sum  of  $900  paid  for  the  whole   purchase 
more  than  it  was  worth,  and  this  loss  must  be  apportioned  to  the  two  tract* 
according  to  their  actual  values  respectively.     Thus,  dividing  the  $900  into 
51   parts,  the  tract  worth  $5,000  would  bear  50  parts  of  it,  and  the  tract 
worth  $100  one  part,  and  by  this  amount  would  the  actual  value  of  the  80-acre 
tract  be   increased  for  the  purpose  of   ascertaining  how  much  was   paid   in 
the  purchase  for  this  tract,  and  by  adding  to  this  sum  the  interest  upon  it 
the  amount  of  the  damages  for  the  breach  of  the  covenant  would  be  ascer- 
tained."    In  Sears  v.  Stinson,  3  Wash.  St.  615,  the  following  rule  was  laid 
down:  "The  jury,1  assuming  the  value  of  the  whole  tract  to  be  the  contract 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       411 

will  be  in  such  proportion  to  the  entire  consideration  as  the  undi- 
vided interest  bears  to  the  entire  estate  in  the  land.65  It  has  been 
held,  however,  that  the  rule  limiting  damages  to  the  actual  value 
of  the  part  lost  does  not  apply  where  the  original  contract  between 
the  parties  shows  that  the  sale  was  by  the  acre  and  not  in  gross. 
In  such  case  the  contract  is  not  merged  in  the  subsequent  deed, 
and  the  covenantor  will  not  be  permitted  to  show  that  the  portion 
lost  consisted  of  bluffs  and  gullies  and  was  worthless.66  If  there 
be  no  evidence  of  a  difference  in  value  between  the  part  of  the 
estate  which  has  been  lost  and  the  part  retained,  the  measure  of 
damages  will,  of  course,  be  such  a  proportion  of  the  entire  pur- 
chase as  the  part  lost  bears  to  the  entire  tract.67 

It  will  hereafter  be  seen  that  a  purchaser  may  rescind  or  refuse 
to  perform  an  executory  contract  for  the  sale  of  lands  if  the  title 
to  a  portion  of  the  estate  prove  defective,  unless  the  portion  af- 
fected or  the  charge  upon  the  estate  be  trifling  and  inconsiderable.68 
He  has  no  such  option  where  the  contract  has  been  executed  by  a 
conveyance  with  full  covenants  for  title.  If  he  be  evicted  from 

price,  must  find  how  much  less  than  the  contract  price  the  land  was  worth 
at  the  time  of  the  sale  by  reason  of  the  deficiency,  and  that  will  be  the  plain- 
tiff's damages."  In  Wright  v.  Nipple,  92  Ind.  314,  it  was  stated  that  the 
measure  of  damages  for  the  loss  of  one-third  of  the  land  was  one-third  of  the 
purchase  money,  but  the  part  to  which  the  title  failed  in  that  case  was  an 
undivided  moiety,  and  the  case,  therefore,  cannot  be  regarded  as  establishing 
in  that  State  a  rule  different  from  that  stated"  in  the  text.  The  same  state- 
ment has  been  made  elsewhere,  but  it  did  not  appear  that  one  part  of  the 
land  was  more  valuable  than  the  other,  and  the  question  of  damages  for  the 
relative  value  was  not  before  the  court.  King  v.  Kerr,  5  Ohio,  160;  22  Am. 
Dec.  777. 

In  Kentucky  it  is  held  that  the  measure  of  damages  for  the  portion  lost 
is  the  fair  market  value  of  that  portion  "  considered  with  reference  to  the 
whole  portion."  Burkholder  v.  Farmers'  Bank,  23  Ky.  L.  Rep.  2449;  67 
S.  W.  Rep.  832.  In  Kempner  v.  Lumber  Co.,  20  Tex.  Civ.  App.  307,  49 
8.  W.  Rep.  412,  the  part  to  which  the  title  failed  was  much  inferior  in 
value  to  the  rest  of  the  land,  and  would  not  have  been  purchased  but  that 
the  seller  refused  to  sell  a  part  only  of  the  tract,  and  insisted  upon  the  same 
price  per  acre  for  the  whole  tract.  It  was  held  that  the  measure  of  damages 
was  the  purchase  price,  without  reference  to  the  actual  value  of  the  part  lost. 

"Downer  v.  Smith,  38  Vt.  464;   Scantlin  v.  Allison,  12  Kans.  92. 

"Conklin  T.  Hancock,  67  Ohio  St.  455;  66  N.  E.  Rep.  518;  Kempner  v. 
Lumber  Co.  20  Tex.  Civ.  App.  307;  49  S.  W.  Rep.  412. 

"Gass  v.   Sanger,    (Tex.   Civ.  App.),  30  S.  W.  Rep.  502. 

"Post,  ch.  32.     1  Sugd.  Vend.    (8th  Am.  ed.)    477    (315). 


412  MARKETABLE    TITLE    TO    REAL    ESTATE. 

part  of  the  estate  by  paramount  title,  he  cannot  treat  the  contract 
as  at  an  end  and  recover  the  entire  purchase  money  as  damages, 
even  though  the  part  to  which  the  title  failed  had  been  the  prin- 
cipal inducement  to  his  purchase.  If  that  part,  however,  be  of 
greater  value  than  the  other,  the  part  of  the  purchase  money  that 
he  will  be  entitled  to  recover  as  damages,  will,  as  we  have  just 
seen,  be  proportioned  to  the  actual  value  of  the  portion  of  the 
premises  lost.  The  same  rule  applies  where  it  appears  that  the 
covenantor  had  not  the  quantity  of  estate  or  the  interest  that  he 
undertook  to  convey.69  Thus,  in  a  case  in  Tennessee  in  which  the 
grantor  had  only  a  life  estate  instead  of  a  fee,  it  was  held  in  an 
action  for  breach  of  the  covenant  of  seisin  that  the  plaintiff  must 
keep  the  life  estate,  recovering  as  damages  the  difference  between 
the  value  of  th,e  life  estate  and  the  fee.70  Where  a  deed  passes  an 
estate  of  value,  though  not  the  precise  estate  covenanted,  it  is  to 
be  considered  in  measuring  the  damages  for  breach  of  the  cove- 
nant.71 If  the  covenantee  and  his  grantees  have  enjoyed  the 
benefit  of  a  life  estate  in  the  premises,  the  value  of  such  estate 
must  be  deducted  from  the  damages,  even  though  the  plaintiff, 
who  was  an  assignee  of  the  covenant,  enjoyed  but  a  small  portion 
of  the  life  estate.72  If  the  title  be  outstanding  in  tenants  in  com- 
mon or  joint  tenants,  and  but  one  of  these  recovers  an  undivided 

"Morris  v.  Phelps,  5  Johns.  (N.  Y.)  56;  4  Am.  Dec.  323.  See,  also,  cases 
cited  ante,  p.  409,  note  64.  An  agreement  that  if  the  title  to  part  of  the 
land  fails,  the  grantee  may  have  credit  on  his  purchase-money  notes  on  re- 
conveying  such  part,  does  not  oblige  him  to  pursue  that  course.  He  may  pay 
the  notes  and  sue  on  the  warranty.  Wood  v.  Thornton,  (Tex.),  19  S.  W. 
Rep.  1034. 

"Recolis  v.  Younglove,  8  Baxt.  (Tenn.),  385.  TUBNEY,  J.,  dissented,  hold- 
ing that  the  covenantee  was  entitled  to  damages  to  the  extent  of  the  entire 
purchase  money.  It  was  intimated  by  the.  court  that  a  different  conclusion 
might  have  been  reached  if  the  plaintiff  had  proceeded  in  equity  for  a  rescis- 
sion of  the  contract  instead  of  seeking  damages  at  law.  It  is  doubtful, 
however,  whether  equity,  in  the  absence  of  fraud  or  mistake,  would  have 
entertained  the  covenantee,  the  contract  being  fully  executed,  and  his  remedy 
at  law  being  adequate  and  plain.  Morris  v.  Phelps,  supra.  Upon  the  prop- 
osition stated  in  the  text,  see  further  Gray  v.  Briscoe.  Noy-  142,  and  cases 
cited  ante,  p.  409.  Tanner  v.  Livingston,  12  Wend.  (M.  Y. )  83. 

"Kimball  v.  Bryant,  25  Minn.  496;  Ogden  v.  Ball,  38  Minn.  237;  36  N.  W 
Rep.  344;  Huntsman  v.  Hendricks,  44  Minn.  423;  46  N.  W.  Rep.  91ft 

"Aiken  v.  McDonald   (So.  Car.),  20  S.  E.  Rep.  796. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       413 

half  against  the  covenantee,  the  warranty  is  broken  only  as  to 
one-half  of  the  premises,  and  the  covenantee  can  recover  damages 
only  on  that  basis.  The  recovery  of  an  undivided  half  by  a  tenant 
in  common  with  a  third  person,  is  not  a  constructive  recovery  of 
the  whole  estate  in  common.73 

It  has  been  held  that  the  burden  will  be  upon  the  plaintiff  to 
show  the  relative  value  of  the  part  to  which  the  title  failed,  and 
that  in  the  absence  of  any  evidence  on  that  point,  it  will  not  be 
presumed  that  all  the  parts  were  of  the  same  value.  The  burden 
is  on  the  plaintiff  to  establish  all  the  facts  showing  that  he  is 
entitled  to  relief,  and  to  what  extent.74  Evidence  of  the  advan- 
tages or  disadvantages  of  the  part  lost,  is  admissible  on  behalf 
of  either  party.75 

Where  the  breach  of  the  covenant  of  warranty  or  the  covenant 
for  quiet  enjoyment,  consists  in  the  establishment  of  an  easement 
in  the  granted  premises,  e.  (j.,  the  occupation  of  a  part  of  the 
premises  by  a  public  highway,  the  measure  of  damages  has  been 
held  to  be  the  difference  in  value  between  the  premises  with  and 
without  the  easement.  In  such  a  case  the  rule  that  the  damages 
are  to  be  measured  by  the  consideration  money,  or  a  ratable  part 
thereof,  does  not  apply.76  Where  the  breach  consisted  in  the 
occupancy  of  a  part  of  the  premises  by  a  tenant  tinder  a  prior 
lease  from  the  grantor,  it  was  held  that  the  measure  of  damages 
was  the  fair  rental  value  of  the  part  occupied,  and  expenses  of 
litigation  with  the  tenant.77 

§  171.  Improvements.  The  rule  that  the  measure  of  damages 
upon  a  breach  of  the  covenants  of  warranty  and  of  seisin,  is  the 

7SMcGrew  v.   Harmon,    (Pa.   St.)    30  Atl.   Rep.   265. 

"Mischke  v.  Baughn,  52  Iowa,  528;  3  N.  W.  Rep.  543. 

"Beaupland  v.  McKeen,  28  Pa.  St.  124;  70  Am.  Dec.  115. 

7«Hymes  v.  Esty,  133  N.  Y.  342;  31  N.  E.  Rep.  105. 

In  a  case  in  which  the  breach  of  warranty  consisted  in  the  condemnation 
of  a  part  of  the  premises  for  street  purposes,  it  was  held  that  the  measure 
of  damages  was  not  merely  the  value  of  the  part  taken,  but  that  the  grantee 
was  entitled  to  recover  also  for  the  resulting  injury  to  the  balance  of  the 
property;  and  that  in  estimating  the  damages  the  peculiar  value,  for  certain 
purposes,  of  the  part  taken,  might  be  considered.  James  v.  Warehouse  Co., 
23  Ky.  L.  Rep.  1216;  64  S.  W.  Rep.  966;  24  Ky.  L.  Rep.  1266;  70  S.  W. 
Rep.  1046. 

"Browning  v.   Stillwell,  86  N.  Y.   Supp.   707;   42  Misc.   346. 


414  MARKETABLE    TITLE    TO    REAL    ESTATE. 

consideration  money  and  interest,  precludes  the  purchaser  from 
recovering  the  value  of  improvements  placed  by  him  on  the  prem- 
ises.78 When,  however,  these  are  of  a  permanent  and  substantial 
character,  he  is  generally  allowed  their  value  in  any  proceeding 
against  him  by  the  holder  of  the  paramount  title  to  recover  the 
premises  and  damages  for  their  detention.79  Especially  will  such 
an  allowance  be  made  when  the  grantee  is  evicted  by  the  grantor 
himself,  upon  the  ground  that  he  was  incompetent  to  execute  the 

ftA 

conveyance. 

§  172.  Covenantee's  right  to  interest  as  damages.  The  rule 
generally  prevailing  throughout  the  United  States  is  that  the  cove- 
nantee  is  entitled  to  recover  interest  on  the  consideration  money 
awarded  as  damages  for  breach  of  the  covenants  for  title  in  all 
cases  in  which  he  is  liable  to  the  real  owner  of  the  estate  for  mesne 
profits,  and  that  he  is  not  entitled  to  interest  unless  he  is  liable 
for  the  profits,81  and  this  without  regard  to  the  proportion  between 

**  Bender  v.  Fromberger,  4  Ball.  ( U.  S. )  442,  leading  case.  Coffman  v. 
Huck,  19  Mo.  435.  But  see  Morton  v.  Ridgway,  3  J.  J.  Marsh.  (Ky.)  254. 
Lejeune  v.  Barrow,  11  La..  Ann.  501. 

'•1  Story  C.  C.  (U.  S.)  478.  Thompson  v.  Morrow,  5  Serg.  &  R.  (Pa.)  289. 
The  right  of  the  defendant  in  ejectment  to  an  allowance  for  improvements 
made  by  him  u^on  the  estate,  is  affirmed  by  statute  in  many  of  the  States. 

80  Hawkins  v.  Brown,  80  Ky.   186. 

n  4  Kent  Com.  475.  The  learned  author  says :  "  The  interest  is  to  counter- 
Tail  the  claim  for  mesne  profits  to  which  the  grantee  is  liable,  and  is  and 
ought  to  be  commensurate  in  point  of  time  with  the  legal  claim  to  mesne 
profits."  2  Sutherland  Dam.  300.  Staats  v.  Ten  Eyck,  3  Caines  (N.  Y.), 
Ill;  2  Am.  Dec.  254;  Pitcher  v.  Livingston,  4  Johns.  (N.  Y.)  l;-4  Am.  Dec. 
229;  Caulkins  v.  Harris,  9  Johns.  (N.  Y.)  324;  Bennet  v.  Jenkins,  13  Johns. 
(N.  Y.)  50.  Collier  v.  Cowger,  52  Ark.  322;  12  S.  W.  Rep.  702.  Cox  v. 
Henry,  32  Pa.  St.  18.  Sumner  v.  Williams,  8  Mass.  222;  5  Am.  Dec.  83. 
Willson  v.  Willson,  25  N.  H.  229;  57  Am.  Dec.  320;  Groesbeck  v.  Harris, 
82  Tex.  411;  19  S.  W.  Rep.  850;  Brown  v.  Hearon,  66  Tex.  63;  17  S.  W.  Rep. 
395.  Bennett  v.  Latham,  18  Tex.  Civ.  App.  403;  Huff  v.  Riley  (Tex.  Civ. 
App.)  64  S.  W.  Rep.  387.  Thompson  v.  Guthrie,  9  Leigh  (Va.),  101;  33 
Am.  Dec.  225.  In  the  earlier  cases  of  Threlkeld  v.  Fitzhugh,  3  Leigh  (Va.), 
451  and  Jackson  v.  Turner,  5  Leigh  (Va.),  ir9,  it  seems  to  have  been  held 
that  the  covenantee  was  entitled  to  interest  only  from  the  date  of  his 
eviction.  So,  also,  in  Moreland  v.  Metz.  24  W.  Va.  138:  49  Am.  Rep.  246. 
Frazer  v.  Supervisors,  74  111.  282.  McNear  v.  McComber,  18  Iowa.  12. 
Stebbins  v.  Wolf,  33  Kans.  771;  7  Pac.  Rep.  542.  Rich  v.  Johnson,  1  Chand. 
(Wis.)  20;  S.  C..  2  Pinney  (Wis.),  88;  Meseer  v.  Oestrich,  52  Wis.  694;  10 
N.  W.  Rep.  6.  King  v.  Kerr,  5  Ohio,  160:  22  Am.  Dec.  777.  McGuffey  v. 


COVENANTS    OF    WARRANTY    AND    FOB    QUIET    ENJOYMENT.       415 

the  amount  of  the  interest  and  the  value  of  the  mesne  profits.82 
Thus,  if  the  true  owner's  right  to  recovery  of  the  profits  is  lim- 
ited by  statute  to  a  certain  number  of  years  next  preceding 
his  action  to  recover  the  premises,  the  evicted  covenantee  will  not 
be  entitled  to  interest  beyond  that  period.83  So,  if  he  takes  a  life 
estate  instead  of  a  fee  under  the  conveyance,  he  is  not  entitled  to 
interest  on  the  damages,  because  he  has  a  right  to  the  profits  as 
against  the  remainderman.84  The  same  rule  applies  where  the  evic- 
tion results  from  the  enforcement  of  a  mortgage  or  other  incurn- 
brance  on  the  land,  the  covenantee  not  being  liable  to  the  incum- 
brancer  for  rents  and  profits.85  In  some  cases,  however,  it  has  been 
held  that  the  covenantee  will  not  be  allowed  interest  on  the  damages 
unless  he  shows  that  he  has  accounted  to  the  real  owner  for  the 
rents  and  profits.86  In  other  cases  his  right  to  interest  has  been  de- 
clared complete  without  regard  to  the  question  of  mesne  profits,  on 
the  ground  that  the  covenantor  has  no  interest  in  the  profits,  and 

Hawes,  9  Lea  (Tenn),  93.  Flint  v.  Steadman,  36  Vt.  210.  A  covenantee 
counterclaiming  for  damages  arising  from  a  judgment  of  eviction  in  eject- 
ment cannot  have  interest  on  the  damages  for  the  time  he  remained  in  poa 
session  after  judgment.  Wacker  v.  Straub,  88  Pa.  St.  32.  The  removal  of 
timber  from  the  premises  by  a  vendee  of  the  covenant  cannot  be  set  off  against 
the  covenantee's  right  to  interest,  he  not  having  received  any  of  the  pro- 
«eeds  of  the  timber.  Graham  v.  Dyer,  (Ky.),  29  S.  W.  Rep.  346. 

«  British  &  Am.  Mtge  Co.  v.  Todd,  84  Miss.  522 ;  36  So.  1040. 

"Harding  v.  Larkin,  41  111.  413.  Morris  v.  Rowan,  17  N.  J.  L.  304.  De 
Long  T.  Spring  Lake  Co.,  65  N.  J.  L.  1;  47  Aal.  491.  Hutchins  v.  Rountree, 
77  Mo.  500';  Lawless  v.  Collier,  19  Mo.  486.  Kyle  v.  Fauntleroy,  9  B.  Mon. 
(Ky.)  620.  Caulkins  v.  Harris,  9  Johns.  (N.  Y.)  324.  Cox  v.  Henry,  32 
Pa.  St.  19.  Mette  v.  Dow,  9  Lea  (Tenn.)  96;  Crittenden  v.  Posey,  1  Head 
(Tenn.),  312. 

•*Guthrey  v.  Pugsley,  12  Johns.  (N.  Y.)    126. 

•Patterson  v.  Stewart,  6  Watts  &  S.  (Pa.)  527;  40  Am.  Dec.  586; 
Williams  v.  Beeman,  2  Dev.  (N.  C.)  486. 

V  Field  Dam.  §  466;  1  Sedg.  Dam.  (7th  ed.)  338,  n.  Wacker  v.  Straub,  88 
Pa.  St.  32.  Benton  v.  Reeds,  20  Ind.  91.  This  rule  has  been  established  by 
statute  in  Missouri.  Hutchins  v.  Rountree,  77  Mo.  500.  Pence  v.  Gabbert, 
70  Mo.  App.  201.  But  see  Foster  v.  Thompson,  41  N.  H.  73,  where  it  was 
held  to  be  immaterial  to  the  allowance  of  interest  whether  the  covenantee  had 
or  had  not  accounted  to  the  adverse  claimant  for  rents  and  profits,  it  beinjj 
presumed  that  mesne  profits  will  be  recovered  by  the  real  owner.  In 
Whiting  v.  Dewey,  15  Pick.  (Mass.)  428,  it  was  intimated  that  if  from  lapse 
of  time  the  covenantee  became  no  longer  liable  for  the  mesne  profits  they 
should  be  deducted  from  the  purchase  money  and  interest. 


416  MARKETABLE    TITLE    TO    REAL    ESTATE. 

cannot  recoup  them  from  the  purchase  money  and  interest,  nor 
compel  the  covenantee  to  account  for  them.87  If  the  covenantee, 
being  liable  for  the  mesne  profits,  buy  in  the  paramount  title  and 
recover  as  damages  the  amount  expended  for  that  purpose,  he  will 
be  allowed  interest  on  the  recovery,  it  being  presumed  that  the 
mesne  profits  entered  into  the  consideration  paid  for  the  para- 
mount title.88  It  has  also  been  held  that  he  will  be  entitled  to  in- 
terest on  the  amount  paid  to  get  in  the  outstanding  title,  whether 
he  has  or  has  not  been  in  the  pernancy  of  the  rents  and  profits,  and 
whether  the  latter  are  more  or  less  than  the  interest  on  the  purchase 
price  of  the  land.89  But  where  the  covenantee  was  kept  out  of  pos- 
session for  a  time  and  afterwards  acquired  possession,  it  was  held 
that  he  could  not  recover  the  rental  value  of  the  premises  for  the 
time  he  was  kept  out  of  possession,  since  he  might  have  required 
possession  to  be  delivered  before  accepting  the  conveyance.90  The 

"Wilson  v.  Peelle,  78  Ind.  384;  Wright  v.  Nipple,  92  id.  314;  Rhea  v. 
Swain,  122  Ind.  272;  23  N.  E.  Rep.  776,  where  held,  also,  that  failure  of 
thfe  true  owner  to  get  judgment  for  the  rents  and  profits  gave  the  covenantor 
no  claim  to  them.  But  see  Burton  v.  Reeds,  20  Ind.  87.  In  Mitchell  Y. 
Hazen,  4  Conn.  435;  10  Am.  Dec.  169,  it  was  said  that  the  grantee  was 
entitled  to  the  consideration  with  interest,  whether  he  had  been  in  possession 
or  not,  for  the  reason  that  the  money  due  to  the  owner  for  rents  and  profits 
constituted  a  distinct  and  separate  claim.  And  in  Hulse  v.  White,  1  Cox 
(N.  J.  L.),  173,  the  court  said:  "The  defendant  cannot  avail  himself  of  the 
use  made  by  the  plaintiffs  of  the  property  of  another,  in  order  to  lessen  the 
damages.  We  must  suppose  that  the  real  owner  will  have  satisfaction  for 
the  profits  received  from  the  land."  In  Earle  v.  Middleton,  Cheves  ( S.  C. ) , 
129,  it  was  held  that  the  fact  that  the  covenantee  had  been  in  receipt  of  the 
profits  did  not  affect  his  right  to  interest  on  the  consideration  money. 
Interest  in  such  a  case  is  allowed  as  an  indemnity  against  any  demand 
for  mesne  profits  that  may  be  made  upon  the  covenantee  in  the  future. 
The  covenantor  cannot  demand  to  have  the  profits  set  off  against  interest 
because  he  is  not  concerned  with  them.  In  this  connection  O'NEALE,  J., 
said:  "There  is  no  case  of  eviction,  actual  or  constructive,  by  paramount 
title,  where  the  party's  right  to  interest  would  be  defeated  by  the  recep- 
tion of  the  rents  and  profits.  The  defect  reaches  back  to  the  beginning  of 
his  title,  and  the  rents  and  profits  which  he  has  received  are  not  those  of 
his  vendor,  but  those  of  a  third  person  having  the  paramount  title.  The 
damages  recovered  in  a  case  of  actual  eviction,  or  which  may  be  recovered 
by  an  existing  paramount  title  outstanding,  are  in  the  place  of  rents  and 
profits,  and  represent  them  in  legal  contemplation." 

88  Harding  v.  Larkin,  41  111.  413. 

89  Spring  v.  Chase,  22  Me.  505 ;  39  Am.  Dec.  505. 

"Andrus  v.   St.  Louis  Smelting  Co.,  130  U.  S.  643.     No  authorities  cited 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       417 

rule  that  the  covenantee  is  not  entitled  to  interest  unless  he  is 
liable  for  the  rents  and  profits,  of  necessity  applies  only  to  cases  in 
which  he  was  in  possession  of  the  estate.  If  he  was  never  able  to 
get  possession,  he  will,  of  course,  be  entitled  to  interest  from  the 
time  the  purchase  money  was  paid.  Interest  runs  from  the  time 
of  purchase,  and  not  merely  from  the  date  of  eviction.91 

§  173.  Costs  and  attorney's  fees  as  elements  of  damages.  In 
England  and  in  most  of  the  American  States,  in  which  the  question 
has  been  considered,  the  covenantee  is  permitted  to  include  in  his 
recovery  for  a  breach  of  the  covenant  of  warranty  or  of  seisin,  the 
taxed  costs  incurred  by  him  in  defending  the  title  when  attacked 
by  the  adverse  claimant,  although  he  may  not  have  notified  the 
covenantor  to  appear  and  defend  the  suit.62  The  purpose  of  such  a 
notice  is  not  to  make  the  covenantor  liable  for  costs  but  to  make 
the  judgment  in  the  adverse  claimant's  suit  conclusive  upon  him 
when  sued  by  the  covenantee  for  the  breach  of  his  covenant.98 

81  Simpson  v.  Belvin,  37  Tex.  675.     Bellows  v.  Litchfield,  83  Iowa,  36 ;  48  N. 
W.  Rep.  1062.  N.  Pac.  R.  Co.  v.  Montgomery,  86  Fed.  251.     But  if  he  is  not 
liable  for  mesne  profits  he  can  recover  interest  only  from  the  date  of  eviction. 
McGuffy  v.  Hawes,  85  Tenn.  26;   1   S.  W.  Rep.  506;  Mette  v.  Dow,  9  Lea 
(Tenn.),  93. 

82  The  cases  cited  below  include,  also,  those  in  which  the  covenantee  was 
allowed  the  costs  of  defending  the  title,  but  in  which  no  objection  was  made 
to  the  allowance,  on  the  ground  that  the  covenantor  had  not  been  notified 
to  defend.     Williams  v.  Burrill;   1  Com.  B.  402;   Smith  v.  Compton,  3  B.  & 
Adolph.   407;    Pomeroy  v.   Partington,   3   Term   Rep.    678,   note.     Bennet  v. 
Jenkins,  13  Johns.   (N.  Y.)  50;  Waldo  v.  Long,  7  Johns.  (N.  Y.)  173.    Keeler 
v.  Wood,  30  Vt.  242.     Kyle  v.  Fauntleroy,  9  B.  Mon.   (Ky.)   622;  Robertson 
v.  Lemon,  2  Bush  (Ky.),  302.    Jeter  v.  Glenn,  9  Rich.  L.   (S.  C.)  374.    Cris- 
f.eld  v.  Storr,  36  Md.  151;  11  Am.  Rep.  480.    Harding  v.  LarWn,  41  111.  421. 
MoKee  v.  Bain,  11  Kans.  578.    Sumner  v.  Williams,  8  Mass.  162,  222.    Brooks 
v.  Black,  (Miss.)  8  So.  Rep.  332.    Matheny  v.  Stewart,  (Mo.)   17  S.  W.  Rep. 
1014.     Hazlett  v.   Woodruff,   150  Mo.   534;    51    S.   W.   Rep.    1048;    Long  r. 
Wheeler,  84  Mo.  App.  101.     Costs  and  counsel  fees  incurred  by  the  grantee 
in  defending  the  title  to  a  piece  of  land,  which,  by  mistake,  was  not  included 
in  his  deed,  cannot  be   recovered  against  the  grantor,  though  the  deed  was, 
after  judgment  against  the  grantee,  reformed  so  as  to  embrace  the   lot  in 
question,  with   covenant  of  warranty.     Butler  v.  Barnes,  61   Conn.   399;   24 
Atl.  Rep.  328.     The  taxable  costs  paid  by  the  plaintiff  may  be  included  in 
the  damages,  though  the  costs  were  not,  in  fact,  taxed.     Webb  v.  Holt,  113 
Mich.  338;   71  N.  W.  Rep.  637. 

•'Morris  v.  Rowan,  17  N.  J.  L.  309  (1839),  FORD,  J.,  saying:  "The  de- 
fendant's counsel  supposes  the  costs  on  eviction  are  allowed  because  it  was 

'      27 


418  MARKETABLE    TITLE    TO    REAL    ESTATE. 

There  has  been  much  conflict  of  opinion,  however,  upon  the  ques- 
tion of  the  liability  of  the  covenantor  for  costs  incurred  by  the 
covenantee  in  defending  the  title,  as  affected  by  the  refusal  of  the 
former  to  appear  and  defend.  There  are  cases  which  hold  that  if 
the  covenantor  refuse  to  defend  when  notified,  he  thereby  confers 
upon  the  covenantee  the  right  to  proceed  with  the  defense  and  to 
incur  all  legal  costs  necessary  for  that  purpose.94  On  the  other  hand 
there  are  cases  which  decide  that  if  the  covenantor  deems  the  title 
indefensible  and  chooses  to  abandon  it  to  the  adverse  claimant,  the 
covenantee  has  no  right  to  saddle  him  with  the  costs  of  an  unprofit- 
able litigation  by  defending  the  suit,95  especially  where  it  was  clear 
that  defense  would  be  useless,  and  the  covenantor  notified  the  cove- 
nantee not  to  defend.96  It  may  be  doubtful  whether  the  want  of 
notice  to  defend,  or  the  refusal  of  the  covenantor  to  defend  when 
notified,  is  proper  to  be  considered  in  determining  the  right  of  the 
covenantee  to  costs.  There  would  seem  to  be  no  obligation  upon 
the  covenantee  to  relinquish  the  estate  to  the  adverse  claimant  and 
lose  the  benefit  of  his  improvements  and  the  increase  in  value  of 
the  premises,  merely  because  the  covenantor  is  unwilling  or  unable 

the  warrantor's  duty  to  defend  the  suit  upon  receiving  notice  of  the  action, 
and  he  objects  to  them  in  this  ease  because  no  notice  was  given  to  the  war- 
rantor or  his  representatives  of  the  pendency  of  the  action.  But  all  the  cases 
agree  in  allowing  the  costs  of  eviction,  and  it  is  immaterial  whether  he  had 
notice  or  not.  His  covenant  to  warrant  and  defend  is  not  a  conditional  one, 
if  he  has  notice,  otherwise  want  of  notice  might  bar  the  warranty  itself.  He 
covenants  to  defend  as  absolutely  as  he  does  to  warrant.  The  intent  of 
notice  is  not  to  make  him  liable  for  costs;  it  is  to  make  the  record  of  eviction 
conclude  him  in  respect  to  the  title."  HOEXBLOWER,  C.  J.,  stated  that  he  had 
examined  a  number  of  cases  bearing  on  the  point  in  dispute,  and  that  in 
none  of  them  did  it  appear  that  the  right  to  costs  depended  on  notice  to 
the  covenantor  to  defend."  See,  also,  Duffield  v.  Scott,  3  Term  Rep.  374. 

"Swett  v.  Patrick,  12  Me.  1;  Williamson  v.  Williamson,  71  Me.  442. 
Dubay  v.  Kelly  (Mich.),  100  N.  W.  Rep.  677.  Mercantile  Trust  Co.  v.  So. 
Park  Residence  Co.,  94  Ky.  271;  22  S.  W.  Rep.  314.  Winnepiseogee  Paper 
Co.  T.  Eaton,  65  N.  H.  13;  18  Atl.  Rep.  171.  Walsh,  v.  Dunn,  34  111.  App. 
146.  Teague  v.  Whaley,  20  Ind.  App.  26;  50  N.  E.  41.  Whether  the  notice 
be  to  prosecute  or  defend,  Potwin  v.  Blasher,  9  Wash.  460;  37  Pac.  Rep.  710. 

"Terry  v.  Drabenstadt,  68  Pa.  St.  403;  Fulweiler  v.  Baugher,  15  Serg.  & 
R.  (Pa.)  55.  But  see  Hood's  Appeal,  (Pa:  St.)  7  Atl.  Rep.  137. 

"Matheny  v.  Stewart,  (Mo.)  17  S.  W.  Rep.  1014.  The  suit  here  was 
against  a  remote  grantor,  and  the  request  not  to  defend  was  by  the  immediate 
grantor. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       419 

to  litigate  the  title.  And  it  would  seem  that  the  right  of  the  cove- 
nantee  to  protect  his  bargain,  should  be  deemed  to  have  been  fully 
within  the  contemplation  of  the  parties  at  the  time  the  covenant 
was  made,  and  the  costs  thence  accruing  to  have  been  within  the 
intent  and  purposes  of  the  covenant.  For  these  reasons,  in  addition 
to  those  first  stated,  it  is  believed  that  the  covenantee  is  entitled 
to  recover  the  taxed  costs  incurred  by  him  in  defending  the  title, 
whether  the  covenantor  was  or  was  not  notified  to  defend,  and 
whether  he  neglected  or  complied  with  the  notice.97 

The  grantee  will  not  be  entitled  to  costs  of  defending  the  title  if 
the  grantor  instead  of  conveying  with  warranty,  merely  covenants 
to  return  the  purchase  money,  if  the  grantee  is  evicted.98  Neither 
can  he  recover  such  costs  unless  they  were  incurred  in  an  action  to 
which  he  was  a  party  of  record  and  in  which  his  title  was  passed 
upon.99  Xor  can  he  recover  costs  incurred  in  a  suit  against  a  mere 
trespasser  or  in  a  suit  against  himself  by  an  adverse  claimant  in 
which  he  is  successful,  for  the  covenant  of  warranty  is  not  broken 
by  a  tortious  disturbance,  nor  by  the  assertion  of  adverse  claims.1 
If  the  covenantor  was  not  seized,  and  the  covenantee  nevertheless 
enter  on  the  land,  and  the  real  owner  recover  against  him  in  tres- 
pass, the  covenantee  cannot  recover  the  costs  and  damages  so  in- 
curred in  an  action  on  the  covenant  of  seisin.2  Nor  will  the 
covenantee  be  allowed  the  costs  of  a  suit  against  himself  by  one  to 
whom  he  had  conveyed  the  land,  and  who  was  evicted.3  Where  the 
warrantor  expressly  agreed  to  pay  any  costs  that  might  be  incurred 
in  defending  the  title,  he  was  held  liable  for  such  costs,  though  not 
made  a  party  to  the  adverse  claimant's  suit.4  The  right  of  the 
grantee  to  recover  costs  expended  in  defending  the  title  is  not 
affected  by  the  fact  that  he  did  not  take  the  initiative  and  proceed 
against  the  adverse  claimant.  He  is  not  bound  to  follow  the  advice 

97  Mr.  Rawle  inclines  to  this  view.  Covts.  for  Title  (5th  ed.),  §  199,  and 
note  2. 

••Barnett  v.  Montgomery,  6  T.  B.  Mon.   (Ky.)    332. 

"Harding  v.  Larkin,  41  111.  413. 

'Christy  v.  Ogle,  33  111.  295.  Smith  v.  Parsons,  33  W.  Va.  644;  11  S.  E. 
Rep.  68.  Kane  v.  Fisher,  2  Watts  (Pa.),  246. 

'Cushman  v.  Blanchard,  2  Gr.    (Me.)    266;    11  Am.  Dec.  76. 

*  Stark  v.  Olney,  3  Oreg.  88. 

4Hedrick  v.  Smith,  (Tex.)  14  S.  W.  Rep.  197.  The  case  does  not  show 
whether  the  promise  was  made  before  or  after  the  warranty. 


420  MARKETABLE    TITLE    TO    REAL    ESTATE. 

or  request  of  the  grantor  to  sue  one  who  sets  up  an  adverse  claim  to 
the  premises.  He  may  subject  himself  to  suit  by  resisting  or  inter- 
fering with  such  claimant,  without  losing  his  right  to  recover  the 
costs  of  such  suit  from  the  grantor.5  The  covenantee,  it  seems,  is 
as  much  entitled  to  recover  as  damages,  costs  incurred  in  a  suit  by 
him  to  recover  possession  from  an  adverse  claimant,  as  those  in- 
curred in  defending  a  suit  by  the  latter,6  provided  the  suit  was 
brought  against  the  adverse  claimant  with  the  concurrence  of  the 
covenantor.7 

As  the  covenant  does  not  extend  to  baseless  claims,  it  has  been 
held  that  the  covenantee  is  not  entitled  to  recover,  on  the  warranty, 
costs  and  expenses  incurred  by  him  in  prosecuting  a  suit  to  quiet 
his  title  against  the  heirs  of  a  widow  of  a  former  owner,  who  had 
forfeited  her  dower  right  to  the  granted  premises  by  electing  to 
take  the  homestead  right  in  other  lands  of  her  husband,  instead  of 
dower.8 

It  seems  that  special  agreements  to  indemnify  the  vendee  for  all 
costs  and  damages  of  any  kind  which  he  may  sustain  in  case  of 
eviction,  are  not  merged  in  a  subsequent  conveyance  to  him  with 
covenants  for  title;9  and  if  the  covenantee  be  evicted,  he  may 

•  Smith  v.  Sprague,  40  Vt.  43. 

•2  Sutherland  Dam.  303. 

7  Kyle  v.  Fauntleroy,  9  B.  Mon.  (Ky.)  620.  See,  also,  Dale  v.  Shively,  8 
Kans.  276.  Kingsbury  v.  Smith,  13  N.  H.  125.  There  the  court  said:  "The 
principle  deducible  from  the  cases  cited  would  seem  to  be  that  the  grantee 
in  an  action  upon  a  covenant  of  warranty,  express  as  in  a  deed,  or  implied 
as  upon  the  sale  of  personal  property,  is  entitled  to  recover,  as  part  of  his 
damages  sustained  by  reason  of  the  failure  of  the  title  conveyed,  the  rea- 
sonable and  necessary  expenses  incurred  in  a  proper  course  of  legal  proceedings 
for  the  ascertainment  and  protection  of  his  rights  under  the  purchase,  aa 
well  as  a  reasonable  compensation  for  his  trouble,  and  expenses  to  which  he 
may  have  been  put  in  extinguishing  a  paramount  title.  And  it  seems  to  us 
that  there  can  be  no  sound  distinction  between  the  case  in  which  the  expenses 
are  incurred  in  the  necessary  and  proper  prosecution  of  a  suit  for  such 
ascertainment  and  protection  of  the  purchaser's  rights,  and  the  case  of  a 
defense  made  for  the  same  purpose.  In  Yokum  v.  Thomas,  15  Iowa,  67,  it 
was  held  that  the  covenantee  could  not  recover  costs  incurred  in  a  suit  to 
vacate  an  invalid  patent  issued  to  an  adverse  claimant  of  the  land.  And 
in  Gragg  v.  Richardson,  25  Ga.  566;  71  Am.  Dec.  190,  the  covenantee  wa» 
denied  attorney's  fees  paid  by  him  in  a  suit  to  recover  the  land. 

•Thome  v.  Clark,  (Iowa)   84  N.  W.  Rep.  701. 

•Colvin  v.  Schell,  1  Grant   (Pa.),  226. 


COVENANTS    OF    WARRANTY    AND    FOB    QUIET    ENJOYMENT.       421 

recover  all  costs  and  expenses  incurred  in  defending  the  title,  with- 
out regard  to  the  question  of  notice  to  the  covenantor  to  defend.10 

In  order  to  recover  costs  and  expenses  of  defending  the  title  as 
a  part  of  his  damages,  the  covenantee  is  not  required  to  show  that 
an  account  of  the  same  was  presented  to  the  defendant  and  payment 
thereof  demanded  before  suit  on  the  covenant  was  begun.11 

Nor  is  it  necessary  that  the  covenantee  shall  show  that  he  has 
actually  paid  the  costs  and  expenses  of  defending  the  title ;  he  is 
entitled  to  recover  costs  incurred  though  not  paid.  But  he  cannot 
recover  interest  on  unpaid  costs.12 

§  174.  Counsel  fees  and  expenses.  Counsel  fees  and  reason- 
able expenses  incurred  in  asserting  or  defending  the  title,  have  not 
been  as  freely  allowed  the  covenantee  as  the  taxed  costs  of  suit  in 
such  cases.  There  would  seem,  however,  to  be  no  difference  in  the 
principles  upon  which  the  covenantee's  claim  is  rested  in  either 
case.  He  is  as  much  obliged  to  avail  himself  of  the  services  of 
counsel,  as  of  those  of  other  officers  of  the  court,  in  the  defense  or 
prosecution  of  his  suit.13  There  is  much  conflict  of  authority  upon 
the  point.  In  some  cases  the  covenantee  has  been  permitted  to 
recover  the  reasonable  fees  paid  by  him  to  his  counsel,  though  no 
notice  of  the  adverse  claimant's  suit  was  given  the  covenantor  and 
no  opportunity  given  him  to  assume  the  defense.14  In  other  cases 

J*Cox  v.  Henry,  32  Pa.  St.  21;  Anderson  v.  Washerbaugh,  43  Pa.  St.  115. 

"Tarbell  v.  Tarbell,  60  Vt.  486;   15  Atl.  Rep.  104. 

"Walton  r.  Campbell,  51  Neb.  788;  71  N.  W.  Rep.  737. 

"  2  Suth.  Dam.  308.  Taylor  v.  Holter,  1  Mont.  688.  Swett  v.  Patrick,  12 
If*  9. 

14  Ryerson  v.  Chapman,  66  Me.  5-62.  This  case  holds  also  that  the  burden 
is  on  the  plaintiff  to  show  that  the  fees  were  reasonable.  Harding  v.  Larkin, 
41  111.  422.  Haynes  v.  Stevens,  11  N.  H.  28.  Pitken  v.  Leavitt,  13  Vt.  379; 
Turner  v.  Goodrich,  26  Vt.  709.  Dale  v.  Shivley,  8  Kans.  276;  McKee  v. 
Bain,  11  Kans.  578.  (Compare  Jewett  v.  Fisher,  [Kan.  App.l  58  Pac. 
1023.)  McAlphine  v.  Woodruff,  11  Ohio  St.  120.  Among  the  foregoing  cases 
are  included  some  in  which  it  appears  that  the  covenantee  was  not  vouched 
in  to  defend  the  adverse  claimant's  suit,  but  in  which  the  want  of  notice 
to  defend  was  not  urged  as  an  objection  to  the  allowance  of  fees.  In  Robert- 
son v.  Lemon,  2  Bush  (Ky.),  301,  the  vendor  had  specially  covenanted  to 
indemnify  the  vendee  "  against  all  loss,  cost  and  damages  growing  out  of  or 
on  account  of  any  defect  in  the  title."  Under  this  agreement  $300  counsel 
fees  paid  by  the  covenantee  were  allowed  him.  In  Swartz  v.  Ballon,  47  Iowa, 
188,  it  was  held  that  the  plaintiff  was  entitled  to  "  reasonable  attorney's 
fees,"  but  that  "  reasonable  fees  "  meant  such  as  had  been  actually  incurred, 


422  MARKETABLE    TITLE    TO    REAL    ESTATE. 

such  fees  have  been  denied  the  covenantee  unless  notice  was  given 
the  covenantor  to  defend,  and  was  neglected  by  him.15  And  in  still 
other  cases  these  fees  have  been  refused  the  covenantee  regardless 
of  the  question  of  notice  to  the  covenantor.16  Reasonable  personal 
expenses,  and  compensation  for  trouble  incurred  in  defending  the 
title  have  been  allowed  the  covenantee  though  the  covenantor  was 
vouched  hi  to  defend  the  adverse  claimant's  suit.17  Counsel  fees 

and  that  lie  must  show  .that  he  had  paid,  or  obligated  himself  to  pay,  the 
fees  claimed.  But  in  Rickert  v.  Snyder,  9  Wend.  (N.  Y.)  419,  423,  it  was 
held  that  the  covenantee  was  entitled  to  reasonable  attorney's  fees,  though 
the  amount  actually  paid  was  neither  alleged  in  the  declaration,  nor  proved 
at  the  trial.  If  the  covenantor  himself  disturb  the  covenantee  in  the  pos- 
session, the  latter  will,  in  an  action  for  breach  of  the  covenant  for  quiet 
enjoyment,  be  entitled  to  counsel  fees  paid  in  resisting  the  covenantor. 
Levitzky  v.  Canning,  33  Cal.  308. 

"Crisfield  v.  Storr,  36  Md.  150;  11  Am.  Rep.  480.  As  an  illustration  of 
the  widely  diverging  opinions  of  judges  upon  the  question  of  fhe  covenantor's 
liability  for  counsel  fees  as  affected  by  the  fact,  or  the  absence  of,  notice  to 
defend,  it  may  be  noted  that  the  very  ground  upon  which  they  were 
allowed  in  this  case,  namely,  the  refusal  of  the  covenantor  to  defend,  is  that 
which  is  assigned  in  other  cases  for  refusing  the  allowance;  the  argument 
being  that  the  covenantor  should  not  be  subjected  to  expense  and  trouble  if 
he  deems  the  title  incapable  of  defense.  Terry  v.  Drabenstadt,  infra.  Barlow 
v.  Delaney,  40  Fed.  Rep.  97.  Mercantile  Trust  Co.  v.  So.  Park  Residence 
Co.,  (Ky.)  22  S.  W.  Rep.  314.  Meservy  v.  Snell,  (lo.)  62  N.  W.  Rep.  767. 
Alexander  v.  Staley,  110  (lo.)  607;  81  N.  W.  Rep.  803.  Wiggins  v.  Tender, 
132  N.  C.  628;  44  N.  E.  Rep.  362. 

"Williams  v.  Burg,  9  Lea  (Tenn.),  455.  Morris  v.  Rowan,  2  Harr. 
(N.  J.  L.)  309;  Holmes  v.  Sinnickson,  3  Gr.  (N.  J.  L.)  313.  Jeter  v.  Glenn, 
9  Rich.  L.  (S.  C.)  374;  Ex  parte  Lynch,  25  So.  Car.  193.  Brooks  v.  Black, 
68  Mies.  161;  8  So.  Rep.  332.  Matheny  v.  Stewart,  108  (Mo.)  73;  17  S.  W. 
Rep.  1014.  Coleman  v.  Clark,  80  Mo.  App.  339.  In  Turner  v.  Miller,  42 
Tex.  421,  it  was  held  that  counsel  fees  should  never  be  allowed  the  covenantee, 
unless  stipulated  for;  distinguishing  Rowe  v.  Heath,  23  Tex.  620.  where  the 
covenantor  had  specially  promised  to  bear  the  expense  of  litigation.  Gates 
v.  Field,  (Tex.  Civ.  App.)  85  S.  W.  Rep.  52. 

"Leffingwell  v.  Elliott,  19  Pick.  (Mass.)  204;  19  Am.  Dec.  343.  Among  the 
items  allowed  in  this  case  were  charges  for  the  plaintiff's  time,  board,  livery 
expenses,  expenses  of  preparation  for  trial,  attendance  at  court,  etc.,  in  the 
adverse  claimant's  suit.  Merrit  v.  Morse,  108  Mass.  270.  Where  one  tract 
of  land  was  by  mistake  conveyed  for  another,  the  purchaser  was  not  allowed  as 
part  of  his  damages  railroad  fares  and  hotel  bills  incurred  while  attempting  to 
make  a  settlement  with  the  vendor.  Doom  v.  Curran,  52  Kans.  360;  34 
Pac.  Rep.  1118.  The  covenantee  has  been  held  entitled  to  his  personal  ex- 
penses, even  though  incurred  after  the  covenantor  had,  upon  notice,  assumed 
the  defense.  Kennison  v.  Taylor,  18  N.  H.  220,  citing  Loomis  v.  Bedel,  11 
N.  H.  74;  Moody  v.  Leavitt,  2  N.  H.  174. 


COVENANTS    OF    WARRANTY    AND    FOE    QUIET    ENJOYMENT.       423 

ior  advice  and  assistance  in  buying  in  the  outstanding  title  have  in 
some  cases  been  allowed,18  and  in  others  refused19  the  plaintiff.  If 
the  covenantor  assume  the  defense  when  requested,  it  has  been  held 
that  the  plaintiff  cannot  recover  attorney's  fees  ;20  if,  however,  the 
covenantor  refuse  or  neglect  to  defend  when  notified  the  right  of 
the  plaintiff  to  recover  those  items  has  been  asserted  in  some  cases,21 
and  denied  in  others.22  It  has  been  held  that  the  covenantee  will 
not  be  entitled  to  recover  attorney's  fees  and  other  expenses  in- 
curred by  him  in  getting  in  an  outstanding  title  to  the  land.23 

§  175.  NOTICE  TO  DEFEND  OH  PROSECUTE  EJECTMENT.  If  a 
grantee  who  has  received  a  covenant  of  general  warranty  be  evicted 
in  pursuance  of  the  judgment  of  a  court  in  favor  of  one  setting  up 
an  adverse  claim  to  the  land,  he  must  show,  in  an  action  for  breach 
of  the  covenant  of  warranty,  that  the  title  so  established  was 
superior  to  that  derived  by  himself  from  the  defendant,  the  cove- 
nantor. It  would  be  obviously  unjust  that  the  covenantor  should  be 
exposed  to  the  danger  of  collusion  between  the  grantee  and  the  ad- 
verse claimant  resulting  in  a  judgment  of  eviction,  or  that  he 
should  be  bound  by  the  proceedings  in  a  suit  to  which  he  had  no 
opportunity  to  become  a  party.  It  has  been  held,  however,  almost 
universally  in  America,  that  if  the  covenantee,  when  sued  in  eject- 

"McKee  v.  Bain,  11  Kans.  569.     Lane  v.  Fury,  31  Ohio  St.  574. 

"Leffingwell  v.  Elliott,  10  Pick.  (Mass.)  204;  8  Pick.  (Mass.)  457;  19 
Am.  Dec.  343.  In  these  cases,  however,  the  covenantor  was  allowed  for  costs 
and  expenses,  other  than  counsel  fees.  Long  v.  Wheeler,  84  (Mo.  App.)  101. 

"Wimberly  v.  Collier,  32  Ga.  13.     Kennison  v.  Taylor,  18  N.  H.  220. 

"Crisfield  v.  Storr,  36  Md.  150;  11  Am.  Rep.  480.  Stark  v.  Olney,  3  Oreg. 
88.  Lane  v.  Fury,  31  Ohio  St.  574.  Keeler  v.  Wood,  30  Vt.  242.  Swett  T. 
Patrick,  12  Me.  1.  See  Ryerson  v.  Chapman,  66  Me.  562,  where  it  was  said 
that  Swett  v.  Patrick,  supra,  does  not  decide  that  costs  and  attorneys'  fees 
are  not  recoverable  when  notice  to  defend  is  not  given,  but  merely  gives  the 
fact  of  notice  as  an  additional  or  conclusive  reason  why  they  should  be  in- 
cluded in  the  damages. 

"Terry  v.  Drabenstadt,  68  Pa.  St.  400,  SHABSWOOD,  J.,  saying:  "Without 
undertaking  to  lay  down  any  general  rule,  it  would  seem  to  be  most  reasonable 
to  hold  that  where  a  covenantor  has  been  notified  to  appear  and  defend,  and 
declines  or  fails  to  do  so,  and  the  covenantee  chooses  to  proceed  and  incur 
costs  and  expenses  in  what  it  may  be  presumed  that  the  covenantor  considered 
an  unnecessary  and  hopeless  contest,  he  does  so  certainly  upon  his  own 
responsibility."  See,  also,  Fulweiler  v.  Baugher,  15  S.  &  R.  (Pa.)  55. 

"Mercantile  Trust  Co.  v.  S.  Park  Residence  Co.,  94  Ky.  271;  22  S.  W.  Rep. 
314. 


424  MARKETABLE    TITLE    TO    REAL    ESTATE. 

ment  by  an  adverse  claimant,  notifies  the  covenantor  of  the  pend- 
ency of  the  suit  and  requests  him  to  appear  and  defend  it,  the  latter 
thereby  becomes  subtsantially  a  party  to  the  suit  and  bound  by  the 
judgment  therein  rendered,  so  that  the  covenantee  will,  in  an  action 
for  breach  of  the  covenant,  be  relieved  from  the  burden  of  proving 
that  the  title  established  by  such  judgment  was  in  fact  paramount 
to  that  of  the  covenantor,  and  that  in  default  of  such  notice  the 
burden  devolves  upon  the  covenantee  to  show  that  he  was  evicted  by 
one  having  a  better  title.24  These  decisions  would  seem  necessarily 

"Abbott's  Trial  Ev.  519;  Rawle  Covts.  for  Title  (5th  ed.),  §  117.  Salle  T. 
Light,  4  Ala.  700;  39  Am.  Dec.  317,  case  of  personal  property.  Hinds  T. 
Allen,  34  Conn.  185,  195.  Gragg  v.  Richardson,  25  Ga.  566;  71  Am.  Dec. 
190;  Clements  v.  Collins,  59  Ga.  124;  Haines  v.  Fort,  93  Ga.  24;  18  S.  E. 
Rep.  994;  Phillips  v.  Cooper,  93  Ga.  639;  20  S.  E.  Rep.  78.  Claycomb  v. 
Hunger,  51  111.  373.  Morgan  v.  Muldoon,  82  Ind.  347;  Bever  v.  North,  107 
Ind.  545.  Jones  v.  Waggoner,  7  J.  J.  Marsh.  (Ky.)  144;  Graham  v.  Dyer, 
(Ky.)  29  S.  W.  Rep.  346;  Elliott  v.  Sanfley,  89  Ky.  57;  L.  S.  W.  Rep.  200; 
Jones  v.  Jones,  (Ky.)  7  S.  W.  Rep.  886.  Chenault  v.  Thomas,  26  Ky.  L.  Rep. 
1029;  83  S.  W.  Rep.  109.  Jackson  v.  Marsh,  5  Wend.  (N.  Y.)  44,  a  case 
in  which  the  covenantee  confessed  judgment  in  favor  of  the  adverse  claimant. 
Davis  v.  Wilbourne,  1  Hill  L.  (S.  C.)  28,  case  of  personal  property.  In 
Buckels  v.  Mouzon,  1  Strobh.  L.  (S.  C.)  448,  it  was  held  that  a  judgment 
by  default  against  the  covenantee  would  not  bind  the  covenantor,  though 
notified  to  defend.  And  in  Middleton  v.  Thompson,  1  Spear  L.  (S.  C.)  67, 
it  was  held  that  it  must  appear  that  the  title  was  put  in  issue.  Greenlaw  v. 
Williams,  2  Lea  (Tenn.),  533.  Bank  of  Winchester  v.  White,  114  (Tenn.) 
62;  84  S.  W.  Rep.  697.  Groesbeck  v.  Harris,  82  Tex.  411;  19  S.  W.  Rep. 
850.  Somers  v.  Schmidt,  24  Wis.  419 ;  1  Am.  Rep.  191.  Wallace  v.  Pereles, 
109  Wis.  316;  85  N.  W.  Rep.  371.  Long  v.  Howard,  (Minn.)  53  N.  W.  Rep. 
1014.  Fitzpatrick  v.  Hoffman,  (Mich.)  62  N.  W.  Rep.  349.  It  is  immaterial 
upon  what  title  the  covenantee  was  evicted  if  the  covenantor  was  notified  to 
defend.  Wendell  v.  North,  24  Wis.  223.  Notice  to  defend  a  suit  for  dower 
binds  the  covenantor.  Terry  v.  Drabenstadt,  68  Pa.  St.  400.  If  the  cove- 
nantee neither  notifies  his  covenantor,  nor  avails  himself  of  a  valid  defense 
which  the  covenantor  might  have  made,  the  latter  may  avail  himself  of  such 
defense  in  an  action  on  the  covenant.  Walton  v.  Cox,  67  Ind.  164.  A  decision 
of  arbitrators  adverse  to  the  covenantor's  title,  rendered  without  notice  of 
the  arbitration  to  the  covenantor,  is  not  binding  upon  him.  Prewitt  v.  Kenton, 
3  Bibb  (Ky.),  282.  In  Texas  the  covenantee,  when  sued  by  an  adverse 
claimant,  is  not  only  allowed  to  implead  the  covenantor  and  bind  him  by 
the  result,  but  he  may  have  judgment  over  against  the  covenantor  for  breach 
of  warranty  in  case  the  adverse  claimant  establishes  his  title  and  obtains 
judgment;  and  this  to  prevent  multiplicity  of  actions.  Kirby  v.  Estell,  75 
Tex.  485;  12  S.  W.  Rep.  807;  Johns  v.  Hardin,  (Tex.)  16  S.  W.  Rep.  623. 
Such  a  practice  is,  of  course,  inadmissible  under  common-law  systems  of 
procedure.  In  a  case  in  Texas  in  which,  after  the  warrantor  had  been. 


COVENANTS    OF    WARRANTY    AND    FOB    QUIET    ENJOYMENT.       425 

to  assume  that  in  the  States  in  which  they  were  rendered  some  pro- 
vision of  law  or  some  practice  existed  by  which  the  covenantor 
when  notified  to  appear  could  procure  himself  to  be  admitted  as  a 
party  defendant  to  the  suit  In  North  Carolina  it  has  been  held 
that  judgment  of  eviction  rendered  after  notice  and  request  to  the 
covenantor  to  appear  and  defend  was  in  no  way  conclusive  upon 
him,  inasmuch  as  there  was  no  law  or  rule,  or  practice  by  which  he 
might  be  made  a  party  to  the  suit.25  The  better  opinion,  however, 
seems  to  be  that  it  is  the  duty  of  the  covenantor  to  appear  upon 
notice  and  request  and  furnish  all  the  aid  and  information  in  his 
power  for  the  successful  maintenance  of  the  suit,  and  that  having 
done  so,  he  may  avail  himself  of  the  judgment  therein  rendered, 
though  not  actually  a  party  to  the  suit.26  Judgment  against  the 


vouched  in  to  defend,  his  co-defendant,  the  warrantee,  amended  his  answer 
so  as  to  claim  judgment  over  against  the  warrantor  in  case  of  an  eviction, 
it  was  held  that  the  latter,  having  received  no  notice  of  the  amendment,  was 
not  bound  by  a  judgment  for  breach  of  warranty  rendered  against  him  in 
pursuance  of  such  amendment.  The  only  effect  of  the  pleadings,  as  they  stood, 
was  to  make  the  judgment  against  the  warrantee  conclusive  of  the  question  of 
paramount  title  in  the  evictor.  Mann  v.  Matthews,  82  Tex.  98;  17  S.  W. 
Rep.  395. 

"Williams  v.  Shaw,  N.  C.  Term.  Rep.  197;  7  Am.  Dec.  706;  Shober  v. 
Robinson,  2  Murph.  (N.  C.)  33;  Wilder  v.  Ireland,  8  Jones  L.  (N.  C.)  88; 
Saunders  v.  Hamilton,  2  Hayw.  (N.  C.)  282;  Martin  v.  Cowes,  2  Dev.  &  Bat. 
L.  (N.  Car.)  101,  the  court  saying:  "In  our  opinion  the  record  of  the  judg- 
ment is  not  only  not  conclusive  evidence,  but  it  is  not  any  evidence  of  title 
against  the  vendor.  It  would  be  repugnant  to  principle  to  bind  any  one  by 
a  judgment  in  a  suit  where,  if  an  opposite  judgment  had  been  rendered  he 
could  derive  no  benefit  from  it,  to  which  suit  he  was  not  a  party,  and  where 
he  could  not  challenge  the  request  nor  examine  witnesses,  nor  exercise  any 
of  the  means  provided  by  law  for  ascertaining  the  truth  and  asserting  his 
right.  In  real  actions  a  warrantor  might  be  made  \  party  by  voucher;  in 
ejectment  a  landlord  may  come  in  to  defend  the  possession  of  his  tenant, 
but  there  is  no  provision  of  law  by  which  a  vendor  can  be  brought  in  to  vin- 
dicate the  possession  of  his  vendee.  To  a  judgment  against  the  vendee,  the 
vendor  is  a  stranger,  and,  therefore,  that  judgment  is  against  him  evidence 
only  of  the  fact  of  the  judgment  and  of  the  damages  and  costs  recovered." 

*•  Chamberlain  v.  Preble,  11  Mass.  375,  where  it  is  said:  "If  he  does  not 
assume  the  defense,  it  is  at  least  his  duty  to  communicate  all  information 
in  his  power  as  to  the  validity  of  the  plaintiff's  title.  If  he  fails  to  do  so, 
if  he  stands  by  and  permits  a  recovery  for  want  of  evidence  of  which  he  ha* 
knowledge,  he  cannot  be  permitted  to  sho\?  that  the  result  would  have  been 
otherwise  if  the  evidence  had  been  produced,  and  so  avoid  the  effect  of  a 
recovery  in  a  suit  against  him.  If  he  pays  no  attention  to  the  notice,  and 


426  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

covenantee  in  trespass,  as  well  as  in  ejectment,  binds  the  cove- 
nantor if  he  has  been  notin?d  of  the  suit  and  requested  to  defend.27 
So.  also,  in  trespass  to  try  title,28  and  in  foreclosure  proceedings.29 
The  covenantee,  by  giving  the  proper  notice,  is  not  only  relieved 
from  the  burden  of  showing  that  the  judgment  under  which  he  was 
evicted  was  founded  upon  a  paramount  title,  but  the  covenantor 
will  not,  in  the  absence  of  fraud  or  collusion,  be  permitted,  when 
sued  for  a  breach  of  his  covenant,  to  dispute  the  title  of  the  eject- 
ment plaintiff,  or  show  a  better  title  in  himself.30  The  notice  makes 
him  a  privy  to  the  action,  and  he  is  bound  whether  he  does  or  does 
not  appear  and  defend.31  In  a  case  in  which  he  did  not  appear  after 
notice  and  request,  he  was  concluded,  though  the  suit  in  which  the 
adverse  title  was  established  was  decided  upon  an  agreed  state  of 
facts  which  was  erroneous,  and  which,  if  it  had  been  correctly 
stated,  would  have  defeated  the  adverse  title,  the  agreed  statement 
of  facts  having  been  made  in  good  faith  and  without  collusion.32 

turns  his  back  upon  the  suit,  he  cannot,  when  called  upon  to  respond,  be 
permitted  to  prove  that  the  defendant  in  the  original  suit  would  have  pre- 
vailed if  the  defense  had  been  conducted  with  a  fuller  knowledge  of  material 
facts."  Under  a  statute  permitting  the  landlord  to  be  made  defendant  whem 
the  tenant  is  sued  in  ejectment,  a  vendor  who  warranted  the  title  cannot 
insist  on  being  substituted  as  defendant.  Linderman  v.  Berg,  12  Pa.  St.  301. 

"Merritt  v.  Morse,  108  Mass.  270. 

» Johns  v.  Hardin,    (Tex.)    16  S.  W.  Rep.  623. 

"Collier  v.  Cowger,  52  Ark.  322;    12  S.  W.  Rep.  702. 

""Merritt  v.  Morse,  108  Mass.  270,  citing  Shears  v.  Dusenbury,  13  Gray 
(Mass.)  292;  Chamberlain  v.  Preble,  11  Allen  (Mass.),  370,  and  Haven  T. 
Grand  June.  R.  Co.,  12  Allen  (Mass.),  337.  Cooper  v.  Watson,  10  Wend. 
(N.  Y.)  205.  Morris  v.  Rowan,  17  N.  J.  L.  307,  obiter.  Ives  v.  Niles,  S 
Watts  (Pa.)~323.  Middleton  v.  Thompson,  1  Spear  L.  (S.  C.)  67;  Wilson 
T.  McElwee,  1  Strobh.  L.  (S.  C.)  65.  Williams  v.  Burg,  9  Lea  (Tenn.), 
455.  Williams  v.  Weatherbee,  2  Aik.  (Vt.)  357.  Wendel  v.  North,  24  Wis. 
223.  The  foregoing  decisions  are  rested  upon  the  familiar  principle  enun- 
ciated by  BULLER,  J.,  in  the  leading  case  of  Duffield  v.  Scott,  3  Term  Rep. 
374,  namely :  "  If  a  demand  is  made  which  the  person  indemnifying  is  bound 
to  pay,  and  notice  is  given  to  him,  and  he  refuses  to  defend  the  action,  in 
consequence  of  which  the  person  to  be  indemnified  is  obliged  to  pay  the 
demand,  that  is  equivalent  to  a  judgment  and  estops  the  other  party  from 
saying  that  the  defendant  in  the  first  action  was  not  bound  to  pay  the 
money." 

"Rawle  Covts.  (5th  ed.)  §  117.  Wimberly  v.  Collier,  32  Ga.  13.  McConnell 
v.  Downs,  48  111.  271.  Woodward' v.  Allen,  3  Dana  (Ky.),  164. 

"  Chamberlain  v.  Preble,  11  Allen  (Mass.),  370.  The  warrantor,  if  made  a 
party,  is  bound  by  judgment  in  a  suit  by  an  adverse  claimant,  though  ren- 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       427 

Notice  should  be  given  to  the  covenantor  himself.  Notice  to  his 
agent,  appointed  to  collect  the  purchase  money,  is  insufficient." 
Notice  to  the  personal  representatives  of  the  covenantor  need  not 
be  given  if  the  covenantor  was  properly  notified  during  his  life- 
time.34 If  the  covenantee  be  evicted  under  a  title  derived  from 
himself,  the  covenantor  will  not,  of  course,  be  estopped  from  show- 
ing that  fact  though  he  may  have  disregarded  a  notice  to  appear 
and  defend  the  suit.35  The  notice  to  appear  and  defend  relieves  the 
covenantee  and  the  adverse  claimant  of  any  imputation  of  col- 
lusion.36 But  if  there  be  actual  collusion,  or  judgment  be  rendered 
against  the  covenantee  through  his  negligence,  the  covenantor  will 
not  be  bound,  notwithstanding  the  notice.37  If  the  covenantor  ap- 
pears and  defends  the  suit  in  pursuance  of  the  notice  and  request, 
a  fortiori  will  he  be  bound  by  the  judgment,  being  actually  and 
not  merely  constructively  a  party  to  the  suit  and  will  not  be  per- 
mitted afterwards  to  show  that  his  title  was  good.88  In  Wisconsin 
it  has  been  held  that  the  covenantor,  though  notified  to  defend  the 
action,  and  failing  so  to  do,  will  not  be  bound  by  a  judgment 
against  his  grantee  if  not  allowed  to  pay  the  costs  and  take  a  new 
trial." 

The  notice  must  be  unequivocal,  certain  and  explicit.  Mere 
knowledge  of  the  action  and  notice  to  attend  the  trial  will  not  suf- 
fice unless  attended  with  an  express  notice  that  he  will  be  required 

dered  upon  a  stipulation  between  the  plaintiff  and  the  co-defendant,  to  which 
he  was  not  a  party.  Brown  v.  Hearon,  66  Tex.  63;  17  S.  VV.  Rep.  395;  Mann 
r.  Matthews,  82  Tex.  98;  17  S.  W.  Rep.  927. 

**  Graham  v.  Tankersley,  15  Ala.  634.  But  in  a  case  in  which  an  agent,  upon 
being  notified,  appeared  and  practically  took  charge  of  the  suit,  the  principal 
was  held  bound  by  the  result.  Bellows  v.  Litchfield,  83  Iowa,  36;  48  N.  W. 
Rep.  1062. 

M  Brown  v.  Taylor,  13  Vt.  631 ;  37  Am.  Dec.  18.  This  decision  was  criti- 
cised in  Somers  v.  Schmidt,  24  Wis.  420;  1  Am.  Dec.  191.  See,  also,  Rawle 
Covts.  (5th  ed.)  §  119. 

"Rowle  Covts.   (5th  ed.)   §  117,  note. 

"Swenk  v.  Stout,  2  Yeates   (Pa.),  470,  472. 

"  Sisk  v.  Woodruff,  15  111.  15,  obiter.     Davis  v.  Smith,  5  Ga.  274. 

"Brown  v.  McMullen,  1  Hill  L.  (S.  C.)  29.  Collis  v.  Cogbill,  9  Lea 
(Tenn.),  137. 

"  Eaton  v.  Lyman,  26  Wis.  62.  It  seems  that  in  this  State  the  covenantor, 
though  not  a  party  to  the  suit,  is  by  statute  entitled  to  a  new  trial  as  a 
matter  of  right. 


428  MARKETABLE    TITLE    TO    REAL    ESTATE. 

to  defend  the  title.40  The  covenantor  must  be  requested  to  take 
upon  himself  the  defense  of  the  title.  Knowledge  of  the  adverse 
suit,  incidentally  acquired  through  third  parties,  will  not  conclude 
him.41 

The  better  opinion  seems  to  be  that  the  covenantor  is  as  much 
bound  by  notice  to  appear  and  prosecute  a  suit  against  an  adverse 
claimant  of  the  estate  begun  by  the  covenantee  as  he  is  to  defend 
one  instituted  against  him.42  This,  however,  has  been  denied  upon 
the  ground  that  there  is  no  principle  upon  which  the  covenantor 
can  be  substituted  as  plaintiff  in  the  action.43  The  covenantee,  after 
beginning  a  suit  against  the  adverse  claimant  and  notifying  the 
covenantor  to  appear  and  prosecute,  may  dismiss  the  suit  without 
affecting  his  right  to  recover  on  the  warranty.44 

No  particular  form  of  notice  is  necessary ;  it  will  be  sufficient  if 
it  explicitly  notifies  the  covenantor  of  the  suit  and  requests  him  to 
defend  it.45 

"Paul  v.  Witman,  3  Watts  &  S.  (Pa.)  409.  Collins  v.  Baker,  6  Mo.  App. 
588.  Dalton  v.  Bowker,  8  Nev.  190.  Greenlaw  v.  Williams,  2  Lea  (Tenn.), 
533.  Sheets  v.  Joyner,  (Ind.)  38  N.  E.  Rep.  830.  The  rule  stated  in  the 
text,  drawn  from  the  cases  cited,  has  not  been  aplied  in  all  cases  in  which 
it  has  been  sought  to  bind  one  person  by  the  result  of  a  suit  against  an- 
other. Thus,  in  Chicago  City  v.  Rollins,  2  Bl.  \U.  S.)  418,  it  was  held  that 
an  individual  would  be  concluded  by  a  judgment  recovered  against  a  cor- 
poration for  his  act  or  negligence  if  he  knew  that  the  suit  was  pending  and 
could  have  defended  it.  An  express  notice  to  such  individual  is  not  necessary 
to  create  a  liability  on  his  part.  Where  the  covenantor,  pending  an  action 
of  ejectment  against  the  covenantee,  wrote  to  him  as  follows :  "  I  must 
defend  the  action.  I  have  consulted  a  lawyer  here,  and  have  given  him  a 
fee.  He  recommends  removing  it  to  the  Supreme  Court.  The  costs  I  ex- 
pect to  pay.  You  did  right  to  employ  a  lawyer.  If  another  is  wanted  you 
must  employ  one.  I  cannot  attend  myself,"  it  was  held  that  the  covenantor 
was  bound  by  a  judgment  against  the  defendant.  Leather  v.  Poultney,  4 
Binn.  (Pa.)  356,  per  TILGHMAN,  J. 

"Somers  v.  Schmidt,  24  Wis.  419;   1  Am.  Rep.   191. 

0  Park  v.  Bates,  12  Vt.  381 ;  36  Am.  Dec.  347 ;  Pitkin  v.  Leavitt,  13  Vt.  379 ; 
Brown  v.  Taylor,  13  Vt.  637;  37  Am.  Dec.  618.  Gragg  v.  Richardson,  25  Ga. 
570;  71  Am.  Dec.  190.  Walsh  v.  Dunn,  34  111.  App.  146. 

'Terrell  v.  Alder,  8  Humph.  (Tenn.)  43.  And  in  North  Carolina  it  has 
been  held  that  if  the  covenantee  sues  an  intruder,  the  fact  that  the  covenantor 
will  not  produce  his  title  deeds  in  aid  of  the  prosecution  gives  the  plaintiff 
no  rights  against  him.  Wilder  v.  Ireland,  8  Jones  L.  (N.  C.)  88. 

44  White  v.  Wilhams,  13  Tex.  258. 

"Williams  v.   Burg,  9  Lea    (Tenn.),  455. 


COVENANTS    OF    WARRANTY    AND    FOR    QUIET    ENJOYMENT.       429 

It  has  been  held  that  the  notice  must  be  in  writing,46  but  the 
weight  of  authority  establishes  the  sufficiency  of  a  verbal  notice.47 

A  judgment  of  eviction  rendered  against  the  covenantee  without 
notice  to  the  covenantor,  has,  in  some  instances,  been  held  prima 
facie  evidence  of  paramount  title  in  the  evictor  on  behalf  on  the 
covenantee  when  suing  for  a  breach  of  the  covenant  of  warranty.4* 
But  the  better  opinion  appears  to  be  that  in  such  a  case  the  judg- 
ment is  evidence  tending  to  show  an  eviction  only,  the  burden  still 
l>eing  upon  the  covenantee  to  show  that  the  eviction  was  under  a 

"Mason  v.  Kellogg,  38  Mich.  132.  BBONSON,  J.,  in  Miner  v.  Clark,  15 
Wend.  (N.  Y.)  425.  Verbal  notice  of  an  application  for  the  appointment  of 
commissioners  to  assign  dower  is  not  conclusive  upon  those  interested.  In  re 
Cooper,  15  Johns.  (N.  Y.)  533.  In  Mason  v.  Kellogg,  supra,  the  court  said: 
"  Upon  full  consideration  we  think  the  dictates  of  policy,  the  force  of  analogy, 
and  weight  of  reason  require  the  notice  to  be  in  writing.  Our  policy  has 
always  favored  written  memorials  of  title  to  rea1  ""tate,  and  in  view  of  the 
effect  which  the  law  attributes  to  this  proceeding,  2t  is  sufficiently  near  being 
a  fact  of  title  to  be  within  the  policy.  It  bears  a  striking  analogy  to  the 
ancient  process  of  voucher  and  summons  and  similar  proceedings  in  some 
of  our  States,  and  of  course  such  proceedings  could  not  be  verbal.  It  con- 
templates the  introduction  of  the  covenantor  and  the  entire  prosecution  of 
the  defense  in  complete  accordance  with  his  views  and  under  his  direction. 
It  is  essentially  a  legal  proceeding,  and  it  is  a  well-recognized  general  rule 
that  every  notice  of  that  character  must  be  in  writing." 

"Miner  v.  Clark,  15  Wend.  (N.  Y.)  425,  BBONSON,  J.,  dissenting.  Somer? 
v.  Schmidt,  24  Wis.  419;  1  Am.  Rep.  191.  The  sufficiency  of  a  verbal  notice 
seems  to  have  been  assumed  in  Collingwood  v.  Irwin,  3  Watts  (Pa.),  306, 
and  in  Greenlaw  v.  Williams,  2  Lea  (Tenn.),  533.  In  Cummings  v.  Harrison, 
57  Miss,  275  (1879),  it  was  said:  "In  order  to  bind  the  warrantor  by  the 
result  of  an  action  of  ejectment  against  the  party  holding  under  him,  and 
to  conclude  him  from  showing  title  when  he  is  sued  on  his  warranty,  it  is 
not  necessary  for  the  notice  to  him  by  the  defendant  in  the  action  of  eject- 
ment to  be  in  writing  or  in  any  particular  form,  or  that  a  demand  should 
be  made  of  him  to  defend  the  action.  If  the  warrantor  has  reasonable  notice 
of  the  action  against  his  warrantee,  and  an  opportunity  to  defend  it,  he  will 
be  bound  by  the  result,  and  when  sued  on  his  warranty,  cannot  be  heard 
to  show  that  the  action  of  ejectment  might  have  been  successfully  defended. 
He  should  have  interposed  such  defense  then,  or  ever  afterwards  be  silent." 

"Leathers  v.  Poultney,  4  Binn.  (Pa.)  352;  Paul  v.  Witman,  3  Watts  &  S. 
(Pa.)  407;  Collingwood  v.  Irwin,  3  Watts  (Pa.),  506,  310.  Pitkin  v.  Leavitt, 
13  Vt.  385.  King  v.  Kerr,  5  Hamm.  (Ohio)  154;  22  Am.  Dec.  777.  Simpson 
v.  Belvin,  37  Tex.  675.  In  Somerville  v.  Hamilton,  4  Wheat.  (U.  S.)  230, 
the  court  was  divided  upon  this  point. 


430  MARKETABLE    TITLE    TO    REAL    ESTATE. 

paramount  title.49  If  he  neglects  to  give  the  notice,  he  must  come 
prepared  to  prove  that  the  evictor  had  the  better  title.  This,  as  has 
been  well  said  imposes  no  hardship  upon  him,  and  subjects  him 
to  but  little  inconvenience.  It  by  no  means  follows  that  a  judg- 
ment in  ejectment  against  a  grantee  is  founded  upon  the  invalidity 
of  the  grantor's  title.  The  judgment  may  be  obtained  by  collusion ; 
by  a  failure  of  the  defendant  to  make  proof  of  the  title  under  which 
he  entered;  or  under  a  conveyance  from  the  covenantee  himself; 
or  under  a  tax  title  originating  in  his  own  default.60 

The  notice  must  be  given  in  reasonable  time.51  It  will  suffice  if 
time  enough  is  allowed  to  prepare  the  case  for  trial.  If  ejectment 
has  been  actually  begun  against  the  covenantee,  it  is  immaterial 
that  his  notice  to  defend  was  given  before  the  complaint  or  declara- 
tion in  ejectment  was  filed.52  Whether  notice  has  or  has  not  been 
given  to  the  covenantor  to  appear  and  assist  in  the  defense  of  a  suit 
attacking  the  title  conveyed  by  him  is  a  question  for  the  jury.63  The 
sufficiency  of  the  notice,  when  given,  is  to  be  determined  by  the 
court.64  Notice  to  the  covenantor  to  appear  and  defend  a  suit  by 
the  adverse  claimant  is  not  indispensable,  nor  a  condition  prec- 
edent, to  the  right  of  the  covenantee  to  recover  on  the  warranty  if 
the  suit  result  in  an  eviction.  It  is  prudent,  however,  to  give  the 
notice  in  order  to  dispense  with  proof  that  the  eviction  was  under 

49  Graham  v.  Tankersley,  15  Ala.  634.  Hinds  v.  Allen,  34  Conn.  195.  Rhode 
v.  Green,  26  Ind.  83;  Walton  v.  Cox,  67  Ind.  164.  Patton  v.  Kennedy,  1  A.  K. 
Marsh.  (Ky.)  288;  10  Am.  Dec.  744;  Devour  v.  Johnson,  3  Bibb  (Ky.),  410; 
Booker  v.  Bell,  3  Bibb  (Ky.),  175;  6  Am.  Dec.  641;  Booker  v.  Meriweather, 
4  Litt.  (Ky.)  212;  Cox  v.  Strode,  4  Bibb  (Ky.),  4;  5  Am.  Dec.  603.  Ryerson 
v.  Chapman,  66  Me.  557 ;  Hardy  v.  Nelson,  27  Me.  525.  Hines  v.  Jenkins, 
64  Mich.  469;  31  N.  W.  Rep.  432.  Fields  v.  Hunter,  8  Mo.  128;  Holladay 
v.  Menifee,  30  Mo.  App.  207.  Dalton  v.  Bowker,  8  Nev.  190.  Middleton  v. 
Thompson,  1  Spear  L.  (S.  C.)  67.  Stevens  v.  Jack,  3  Yerg.  (Term.),  403, 
case  of  personal  property.  Clark  v.  Munford,  62  Tex.  531.  Gates  v.  Field 
(Tex.  Civ.  App.)  85  S.  W.  Rep.  52. 

"Sisk  v.  Woodruff,   15  111.   15;   Brady  v.   Spurck,  27  111.  479. 

"Middleton  v.  Thompson,  1  Spear  L.  (S.  C.)  67;  Davis  v.  Wilbourne,  1 
Hiii  L.  (8.  C.)  28;  26  Am.  Dec.  154. 

"  Cook  v.  Curtis,  68  Mich.  611 ;  36  N.  W.  Rep.  692. 

M Collingwood  v.  Irwin,  3  Watts   (Pa.),  310. 

"Rowle  Covts.  (5th  ed.)  §  120. 


COVENANTS  OF  WARBANTY  AND  FOB  QUIET  ENJOYMENT.       431 

a  paramount  title.65  But  in  Louisiana  it  has  been  held  that  if  the 
covenantor  loses  a  good  defense  that  he  might  have  made  if  he  had 
been  seasonably  called  upon  to  defend  the  title,  the  covenantee  can- 
not recover  on  the  warranty.56  A  record  of  a  judgment  of  eviction 
which  appears  to  be  a  complete  transcript  will  be  received  in 
evidence  in  an  action  for  breach  of  warranty,  though  not  certified 
to  be  full  and  complete.57  It  has  been  held  that  if  judgment  in 
ejectment  be  recovered  against  the  covenantee,  not  on  the  ground 
that  the  plaintiff's  title  was  superior  to  that  of  the  covenantor,  but 
on  the  ground  that  the  defendant  in  ejectment  was  precluded  by 
the  acts  and  declarations  of  his  immediate  grantor  from  taking 
refuge  under  the  good  title,  the  latter  will  not  be  bound  by  the 
judgment,  though  he  was  notified  to  appear  and  defend  the  suit.58 
Notwithstanding  notice  to  the  covenantor  to  appear  and  defend  a 
suit  attacking  the  title,  the  covenantee  must,  if  evicted,  show,  in  an 
action  for  breach  of  the  covenant,  that  the  eviction  took  place  under 
a  title  older  than  his  own ;  that  is,  a  title  not  derived  from  himself, 
unless  the  record  of  the  suit  in  which  he  was  evicted  shows  that 
fact.59  Therefore,  where  the  breach  of  warranty  complained  of  was 
that  an  adverse  decree  had  been  rendered  against  the  covenantee  in 
a  suit  against  him  to  quiet  title,  and  that  possession  had  been  taken 
by  the  adverse  claimant  under  that  decree,  but  it  did  not  appear 

63  Chapman  v.  Holmes,  5  Halst.  ( 10  N.  J.  L. )  24.  King  v.  Kerr,  5  Ohio,  158 ; 
22  Am.  Dec.  777.  Pitkin  v.  Leavitt,  13  Vt.  379.  Ryerson  v.  Chapman,  66  Me. 
557.  Talbot  v.  Bedford,  Cooke  (Tenn.),  447.  Boyle  v.  Edwards,  114  Mass. 
373.  Wheelock  v.  Overshiner,  (Mo.)  19  S.  W.  Rep.  640.  The  foregoing  cases 
are  largely  founded  on  Smith  v.  Compton,  3  Barn.  &  Ad.  407,  a  case  in  which 
the  covenantor  compromised  a  suit  against  himself  by  the  adverse  claimant 
at  £500,  and  was  afterwards  permitted  to  recover  the  amount  so  paid  from 
the  covenantor,  though  the  latter  was  not  notified  of  the  adverse  claimant's 
suit.  TENTEBDEN,  C.  J.,  said :  "  The  only  effect  of  want  of  notice  in  a  case 
such  as  this  is  to  let  in  the  party  who  is  called  upon  for  an  indemnity  to  show 
that  the  plaintiff  has  no  claim  in  respect  of  the  alleged  loss." 

"Kelly  v.  Wiseman,  14  La.  Ann.  661. 

"Radcliff  v.  Ship,  Hard.   (Ky.)   299. 

"Kelly  v.  Dutch  Church,  2  Hill   (N.  Y.),  105. 

"Folliard  v.  Wallce,  2  Johns.  (N.  Y.)  395.  Williams  v.  Wetherbee,  2  Aik. 
(Vt.)  337;  Knapp  v.  Marlboro,  34  Vt.  235;  Pitkin  v.  Leavitt,  13  Vt.  379,  384; 
Swazey  v.  Brooks,  34  Vt.  451.  See  cases  cited,  post,  §  176.  Parol  evidence  of 
testimony  given  on  the  trial  of  ejectment  agains't  the  covenantee  is  admissible 
to  show  that  recovery  was  under  a  title  derived  from  the  covenantor.  Leather 
v.  Poultney,  4  Binn.  (Pa.)  356. 


432  MARKETABLE    TITLE    TO    REAL    ESTATE. 

that  the  title  on  which  such  decree  was  based  was  older  than  or 
prior  to  that  under  which  the  covenantor  conveyed,  it  was  held  that 
the  plaintiff,  the  covenantee,  was  not  entitled  to  recover,  since  there 
was  nothing  to  show  but  that  the  title  under  which  he  was  evicted 
was  derived  from  himself.60 

If  the  grantee  is  evicted  by  one  who  claims  under  a  prior  deed 
from  the  grantor  such  eviction  is  a  breach  of  a  covenant  against  the 
acts  of  the  grantor  himself.  The  covenant  of  special  warranty 
embraces  past  as  well  as  future  acts  of  the  grantor.61  An  eviction 
by  one  holding  under  a  prior  appointment  by  the  grantor  is  equiva- 
lent to  an  eviction  by  the  grantor  himself.62  It  has  been  held  that  if 
the  grantor  conveys  a  clear  title  with  general  warranty,  and  the 
grantee  fails  to  record  his  deed  in  due  time,  by  reason  of  which  he 
loses  the  estate  to  a  subsequent  grantee  of  the  covenantor  who  first 
records  his  deed,  there  is  no  breach  of  the  covenant  of  warranty, 
and  that  the  remedy  of  the  covenantee,  if  any,  is  by  action  on  the 
case  for  the  damages  actually  sustained,  or  for  money  received  to 
his  use  by  the  covenantor.63  Other  cases,  however,  hold,  and  appar- 
ently with  greater  reason,  that  the  grantor  cannot  claim  that  the 
grantee  should  have  recorded  his  deed  in  order  to  guard  against  a 

•°  Pack  v.  Houghtaling,  38  Mich.  127.  Clements  v.  Collins,  59  Ga.  124,  the 
court  saying :  "  The  great  and  insurmountable  defect  in  the  evidence,  how- 
ever, is  that  it  fails  to  show  that  the  recovery  in  ejectment  was  had  upon  title 
outstanding  at  the  date  of  the  warranty.  Nothing  appears  which  is  the  least 
inconsistent  with  the  covenant.  Ten  years  had  elapsed  when  ejectment  suit 
was  brought,  and  no  date  in  the  pleadings  or  the  evidence  has  any  relation 
whatever  to  so  remote  a  period  in  the  past.  What  the  judgment  in  eject- 
ment adjudicates  is  that  the  plaintiff  (in  the  ejectment)  had  title  at  the 
commencement  of  that  action,  in  1869.  But  that  fact  is  perfectly  consistent 
with  title  in  the  warrantor  in  1859.  There  is  nothing  to  show  that  the  very 
deed  containing  the  warranty  now  sued  on  was  not  a  part  of  the  chain  of 
title  upon  which  the  premises  were  recovered  in  the  action  of  ejectment." 

«»Faries  v.  Smith,  11  Rich.  L.  (S.  C.)   82. 

«  Calvert  v.  Sebright,  15  Beav.  156. 

**  Wade  v.  Comstock,  11  Ohio  St.  71,  upon  the  ground  that  the  covenant  of 
warranty  relates  solely  to  the  title  as  it  was  at  the  time  the  conveyance  was 
made,  and  merely  binds  the  covenantor  to  protect  the  grantee  and  his  assigns 
against  a  lawful  and  better  title  existing  before  or  at  the  time  of  the  grant. 
Mr.  Rawle  seems  to  approve  this  rule,  at  least  in  cases  in  which  an  interest 
remains  in  the  grantor,  e.  g.,  an  equity  of  redemption,  the  conveyance  con- 
taining the  covenant  having  been  a  mortgage.  Covenants  for  Title  (5th  ed.), 
§  128,  n.  5.  See,  also,  Scott  v.  Scott,  70  Pa.  St.  244. 


COVENANTS  OF  WABRANTY  AND  FOB  QUIET  ENJOYMENT.       433 

subsequent  wrongful  transfer  of  the  same  title  to  another  by  the 
grantor  himself.  The  covenant  of  warranty  includes  a  covenant 
against  all  persons  claiming  by,  through,  or  under  the  grantor,  and 
the  case  mentioned  comes  literally  within  these  terms.  The  doctrine 
of  estoppel  applies.64 

§  176.  PLEADING  AND  BURDEN  OF  PROOF.  In  an  action  on 
a  covenant  of  warranty  the  plaintiff  must  set  out  the  covenant  or 
its  substance  in  his  declaration  or  complaint  and  then  aver  an  evic- 
tion by  one  having  lawful  right.66  It  is  not  sufficient  merely  to 
negative  the  words  of  the  covenant ;  the  eviction  must  be  alleged.*8 
But  it  is  not  necessary  that  the  facts  constituting  the  eviction  CT  nor 

"Curtis  v.  Deering,  12  Me.  499;  Williamson  v.  Williamson,  71  Me.  442. 
Lukcns  v.  Licolson,  4  Phila.  R.  22.  See,  also,  Maeder  v.  Carondelet,  26  Mo. 
114.  Staples  v.  Flint,  28  Vt.  794,  semble. 

•  See  form,  2  Chit.  PL  546.  Brady  v.  Peck,  99  Ky.  42 ;  34  S.  W.  Rep.  206. 
Gano  v.  Green,  116  Ga.  22;  42  S.  E.  Rep.  371.  Hampton  v.  Webster,  56  Neb. 
628;  77  N.  W.  Rep.  50;  Merrill  v.  Suing,  66  Neb.  404;  92  N.  W.  Rep.  618; 
Sears  v.  Broady,  66  Neb.  207;  92  N.  W.  Rep.  214.  Dexter  v.  Manly,  4  Gush. 
(Mass.)  14.  A  covenant  of  warranty  should  not  be  pleaded  as  a  covenant  for 
quiet  enjoyment.  It  should  be  pleaded  according  to  its  form,  leaving  the 
effect  to  be  determined  in  the  action.  Peck  v.  Houghtaling,  38  Mich.  127. 

"Blanchard  v.  Hoxie,  34  Me.  378.  Wills  v.  Primm,  21  Tex.  380;  Raines  v. 
Callaway,  27  Tex.  678.  Thompson  v.  Brazile,  65  Ark.  495 ;  47  S.  W.  Rep.  299. 
A  pleading  by  the  covenantee,  alleging  inability  to  get  possession  of  the 
premises  because  held  by  a  third  person,  claiming  under  a  superior  title,  is 
fatally  bad,  unless  it  alleges  that  the  premises  were  so  held  at  the  time  of 
the  warranty,  or  that  the  person  in  possession  had  been  adjudged  to  have  the 
paramount  title.  Jett  v.  Farmers'  Bank,  25  Ky.  L.  Rep.  817 ;  76  S.  W.  Rep. 
385. 

"Rickert  v.  Snyder,  9  Wend.  (N.  Y.)  420;  Townsend  v.  Morris,  6  Cow. 
(N.  Y.)  123.  Cheney  v.  Straube,  35  Neb.  521;  53  N.  W.  Rep.  479.  A  declara- 
tion in  covenant  on  a  general  warranty  of  lands,  which  states  that  the  defend- 
ant had  no  title  at  the  time  of  the  sale,  that  ejectment  had  been  brought 
against  the  plaintiff  by  a  stranger,  of  which  he  gave  the  defendant  notice, 
and  that  plaintiff  had  afterwards  been  evicted  in  due  course  of  law  is  suffi- 
cient. Swenk  v.  Stout,  2  Yeates  (Pa.),  470.  An  averment  that  the  cove- 
mantor  had  not  a  good  and  sufficient  title  to  the  land,  and  that  by  reason 
thereof  the  plaintiff  was  ousted  and  dispossessed  of  the  premises  by  due  course 
of  law  is  sufficient  as  an  averment  of  an  eviction  by  title  paramount.  Banks 
v.  Whitehead,  7  Ala.  83.  Reese  v.  McQuillikin,  7  Ind.  451.  Mills  v.  Rice,  3 
Neb.  76.  In  Day  v.  Chism,  10  Wh.  (U.  S.)  449,  the  following  language  in 
the  declaration  "  that  the  said  O.  had  not  a  good  and  sufficient  title  to  the 
said  tract  of  land,  and  by  reason  thereof  the  said  plaintiffs  were  ousted  and 
dispossessed  of  the  said  premises  by  due  course  of  law,",  was  held  sufficient 
as  a  substantial  averment  of  an  eviction  by  title  paramount. 

28 


434  MARKETABLE    TITLE    TO    REAL   ESTATE. 

the  nature  of  the  eviction,  that  is,  whether  actual  or  constructive, 
be  alleged;68  nor  is  it  necessary  that  the  paramount  title  under 
which  the  eviction  transpired  nor  the  nature  thereof  be  set  forth 
particularly.6?  Nor  need  the  plaintiff  allege  that  he  relied  on  the 
defendant's  warranty,  for  that  were  to  allege  what  the  law  pre- 
sumes.70 But  he  must  aver  that  he  was  evicted  by  one  having  a  law- 
ful title71  and  that  such  title  was  older  and  better  than  that  pro- 
tected by  the  covenant,  otherwise  it  would  not  appear  but  that  the 
plaintiff  was  evicted  under  a  title  derived  from  himself.72  Of 
course,  however,  if  the  warranty  was  against  the  claims  of  a  par- 
ticular person,  it  would  be  sufficient  to  allege  that  the  plaintiff  was 
evicted  by  that  person  without  averring  that  his  title  was  older  or 
better  than  that  of  the  defendant  or  that  it  existed  at  the  time  of 
the  covenant.73  It  is  not  necessary  to  aver  that  the  title  to  the  land 

"Reese  v.  McQuillikin,  7  Ind.  451.     Sheffey  v.  Gardner,  79  Va.  313. 

"Talbot  v.  Bedford,  Cooke  (Term.),  447.  But  see  Prestwood  v.  McGowan, 
128  Ala.  267;  29  So.  Rep.  386,  where  it  was  held  that  the  paramount  title 
must  be  substantially  set  forth. 

TONorris  v.  Kipp,  74  Iowa,  444;  38  N.  W.  Rep.  152. 

"Greenby  v.  Wilcox,  2  Johns.  (N.  Y.)  1;  Webb  v.  Alexander,  7  Wend. 
(N.  Y.)  286. 

"  Wotton  v.  Hele,  2  Saund.  177  and  n.  10;  Hayes  v.  Bickerstaff,  Vaugh. 
118.  Folliard  v.  Wallace,  2  Johns.  (N.  Y.)  395;  Greenby  v.  Wilcox,  2  Johns. 
(N.  Y.)  1;  Grannis  v.  Clark,  8  Cow.  (N.  Y.)  36.  Crisfield  v.  Storr,  36  Md. 
148;  11  Am.  Rep.  480,  and  analogous  cases  there  cite3.  Pitkin  v.  Leavitt,  13 
Vt.  384.  Giddings  v.  Canfield,  4  Conn.  482.  Jones  v.  Jones,  87  Ky.  82;  7 
S.  W.  Rep.  886;  Chenault  v.  Thomas,  26  Ky.  L.  Rep.  1029;  83  S.  W.  Rep.  109. 
So,  also,  in  an  action  for  rent  a  plea  of  eviction  by  title  paramount  must  aver 
that  such  title  existed  before  the  demise.  Naglee  v.  Ingersoll,  7  Pa.  St.  185, 
205.  An  averment  that  the  plaintiff  was  evicted  by  the  holder  of  "  a  superior 
and  better  title  than  the  one  sold  by  the  defendant,"  is  sufficient  as  an  aver- 
ment that  the  plaintiff  was  not  evicted  under  a  title  derived  from  himself. 
Woodward  v.  Allen,  3  Dana  (Ky.),  164. 

"Patton  v.  Kennedy,  1  A.  K.  Marsh.  (Ky.)  389;  10  Am.  Dec.  744;  Pence 
v.  Duval,  9  B.  Mon.  (Ky. )  49.  The  necessity  for  such  an  averment  is  even 
greater  where  there  have  been  several  intermediate  conveyances,  as  in  the 
latter  case  it  would  be  intended,  if  the  declaration  did  not  aver  that  the 
title  of  the  party  evicting  was  older  and  better  and  existing  at  the  date  of 
the  covenant,  that  he  had  derived  it  from  one  of  the  intermediate  grantees. 
In  such  a  case  the  title  of  the  party  evicting  might  well  be  older  and  better 
than  that  of  the  defendant  in  the  ejectment,  and  yet  not  older  and  better  than 
that  of  the  covenantor,  and  if  it  was  not  older  and  better  than  the  latter  there 
would  be  no  breach  of  the  covenant.  Language  of  GBASON,  J.,  in  Crisfield  v. 
Storr,  36  Md.  148;  11  Am.  Rep.  480.  An  averment  that  a  stranger  had 


COVENANTS  OF  WABRANTY  AND  FOR  QUIET  ENJOYMENT.       435 

has  been  tried;  it  is  sufficient  to  aver  an  eviction  by  paramount 
title,  and  the  superiority  of  that  title  will  be  determined  at  the 
trial;74  nor  is  it  necessary,  where  the  plaintiff  was  evicted  by  judg- 
ment and  process  in  a  possessory  action,  to  aver  that  the  de- 
fendant had  notice  of  the  action  and  was  requested  to  defend  it.76 
Nor  is  it  necessary  to  allege  that  the  grantor  did  not,  after  execut- 
ing the  covenant,  acquire  a  title  which  would  enure  to  the  benefit 
of  the  grantee  by  estoppel  ;76  nor  that  the  covenantee  relied  on  the 
warranty,  since  that  is  a  presumption  of  law.77  The  covenant  must, 
of  course,  be  truly  described,  and  the  breach  averred  not  to  be 
within  any  of  the  restrictions,  limitations  or  qualifications  of  the 
covenant  if  any,  contained  in  the  deed.  Thus,  where  the  declara- 
tion set  forth  a  conveyance  and  warranty  of  the  entire  estate  in 
fee,  and  a  conveyance  with  warranty,  subject  to  a  mortgage,  ap- 
peared in  evidence,  the  variance  was  held  fatal.78  The  plaintiff 
must  also  allege  that  the  title  or  claim  under  which  he  was  evicted, 
came  within  the  defendant's  covenants.79  It  will  be  sufficient,  how- 
ever, if  the  covenant  be  stated  according  to  its  legal  effect  and  not 
in  the  precise  language  of  the  deed.80 

Burden  of  proof.  The  plaintiff  in  an  action  for  breach  of  the 
covenant  of  warranty  alleging  an  eviction,  as  he  must,  has  the 
affirmative  of  the  issue,  and  the  burden  of  proof  lies  on  him  to 
show  the  eviction  under  a  lawful  title  older  than  that  under  which 
he  held.81  But  the  burden  shifts  if  the  defendant  so  pleads  as  to 
have  the  affirmative  himself.  Thus,  where  the  breach  alleged  was 
that  the  title  was  outstanding  in  another  by  reason  of  which  the 
plaintiff  could  not  get  possession,  and  the  defendant  pleaded -that 

brought  suit  and  recovered  the  land,  without  alleging  against  whom  he 
recovered,  or  that  the  plaintiffs  (grantee's)  title  had  been  called  in  question, 
or  that  the  title  of  such  .claimant  was  superior  to  that  of  the  plaintiff,  does 
not  sufficiently  allege  a  breach  of  the  covenant  of  warranty.  Wills  v.  Primm, 
21  Tex.  380. 

"Fatten  v.  Kennedy,  1  A.  K.  Marsh.   (Ky.)   288;  10  Am.  Dec.  744. 

"Rhode  v.   Green,  26  Ind.  83. 

"Mason  v.  Cooksey,  51  Ind.  519. 

"Norris  v.  Kipp,  74  Iowa,  444;  38  N.  W.  Rep.  152. 

"Shafer  v.  Wiseman,  47  Mich.  63;   10  N.  W.  Rep.  104. 

"Dexter  v.  Manly,  4  Cush.   (Mass.)    14. 

"•Bland  v.  Thomas   (Ky.),  3  S.  W.  Rep.  595. 

n  Peck  v.  Houghtaling,  88  Mich.  127.    Holladay  v.  Menifee,  30  Mo.  App.  216. 


436 


MARKETABLE    TITLE    TO    BEAL    ESTATE. 


the  better  title  was  not  so  outstanding  but  had  been  by  himself  con- 
veyed to  the  plaintiff,  it  was  held  that  the  burden  was  upon  him  to 
show  that  the  title  so  conveyed  was  paramount.82  And  if  the  cove- 
nantee  shows  that  he  has  been  evicted  or  kept  out  of  possession  by 
one  claiming  title  the  burden  lies  upon  the  covenantor  to  show  that 
his  title  was  paramount  to  that  of  the  evictor.  The  reason  for  this 
rule  is  that  a  party  in  possession  of  lands  is  always  presumed  to 
have  a  valid  title.83 

The  deed  containing  the  covenant  if  properly  executed  and 
recorded,  will  be  received  in  evidence  to  show  the  warranty,  with- 
out proof  of  its  execution.84 

§  177.  COVENANT  FOB  QUIET  ENJOYMENT.  The  covenant 
for  quiet  enjoyment  and  the  covenant  for  warranty  are  in  effect 
the  same,85  the  only  difference  being,  it  seems,  that  the  former  is 
broken  by  an  actual  disturbance  of  the  possession  of  the  covenantee 
by  one  having  a  superior  right,  while  the  latter  is  not  broken  until 
the  disturbance  has  culminated  in  an  eviction.86  Thus,  ejectment 
brought  by  the  true  owner  against  the  covenantee  is  a  breach  of 
the  covenant  for  quiet  enjoyment,  while  there  is  no  breach  of  the 
covenant  of  warranty  until  the  action  has  resulted  in  an  eviction.87 

"Owen  v.  Thomas,  33  111.  320.  In  Georgia  it  has  been  held  that  if  the 
covenantee  shows  that  since  his  purchase  the  land  has  been  sold  under  execu- 
tion against  a  stranger,  and  that  he  surrendered  the  possession  of  such  pur- 
chase (the  defendant  in  the  execution  having  had  possession  after  judgment 
entered  against  him),  the  burden  will  be  cast  on  the  covenantor  to  show  that 
the  person  to  whom  the  surrender  was  made  did  not  have  the  better  title. 
Taylor  v.  Stewart,  54  Ga.  81. 

MHeyn  v.  Ohman,  (Neb.)  60  N.  W.  Rep.  952,  citing  Ward  v.  Mclntosh,  12 
Ohio  St.  231.  Jones  v.  Bland,  112  Pa.  St.  176;  2  Atl.  Rep.  541.  Brown  v. 
Feagin,  37  Neb.  256;  55  N.  W.  Rep.  1048. 

"Williams  v.  Weatherbee,  2  Aik.   (Vt.)   337. 

»3  Washb.  Real  Prop.  467  (660)  ;  Rawle  Covts.  for  Title  (5th  ed.),  §  96. 
Fowler  v.  Poling,  2  Barb.  (N.  Y.)  300;  Rea  v.  Minkler,  5  Lans.  (N.  Y.)  196. 

••See  2  Sugd.  Vend.  273  (601)  and  Rawle  Covts.  for  Title  (5th  ed.),  §  130, 
where  it  is  said  that  a  suit  in  equity  against  the  purchaser  threatening  the 
title  is  a  breach  of  the  covenant  for  quiet  enjoyment.  A  lessee  claiming  that 
he  has  been  evicted  from  a  ground  rent,  must  show  that  his  tenancy  has  been 
successfully  interfered  with.  A  mere  suit  to  prevent  him  from  using  the 
premises  for  particular  purposes  will  not  amount  to  a  breach  of  the  covenant. 
Jarden  v.  Lafferty,  (Pa.  St.)  7  Atl.  Rep.  743.  The  covenant  is  not  broken  by 
a  proceeding  which  interferes  only  with  a  particular  mode  of  enjoyment  of 
the  premises.  Rawle  Covts.  (5th  ed.),  §  130. 

17  Stewart  v.  West,  14  Pa.  St.  336. 


COVENANTS  OF  WARRANTY  AND  FOR  QUIET  ENJOYMENT.       437 

A  suit  in  equity  in  which  it  is  sought  to  deprive  the  covenantee  of 
his  estate  is  as  much  a  breach  of  the  covenant  for  quiet  enjoyment 
as  an  action  of  ejectment,  or  other  possessory  proceeding.88  The 
principal  use  and  employment  of  this  covenant,  therefore,  is  in 
the  creation  and  conveyance  of  estates  for  years.  It  is  broken  only 
by  an  actual  disturbance  of  the  possession  by  one  having  a  better 
right,*9  unless  the  disturbance  was  by  the  lessor  himself  or  his 
agents.  In  the  latter  event  the  covenant  is  broken  without  regard 
to  the  question  of  paramount  title.90  With  respect  to  the  acts  of  the 
lessor,  it  is  immaterial  that  the  lease  does  not  contain  an  express 
covenant  for  quiet  enjoyment.  Such  a  covenant  will  always  be 
implied  from  the  lease  itself  in  case  of  a  tortious  disturbance  by 
the  lessor.11 

The  covenant  for  quiet  enjoyment  like  the  covenant  of  warranty, 
is  not  a  covenant  that  the  grantor  is  seised  of  an  indefeasible  estate. 
Therefore,  it  is  not  broken  where  the  grantor,  purporting  to  convey 
a  fee,  had  only  a  life  estate,  so  long  as  the  grantee  remains  in  the 
undisturbed  possession  of  the  life  estate.92 

"Sudg.  Vend.   (14th  ed.)  601;  Rawle  Covts.  (5th  ed.),  §  130. 

"Ante,   §   142. 

"Moore  v.  Weber,  71  Pa.  St.  429;  10  Am.  Rep.  708. 

"Dexter  v.  Manly,  4  Cush.   (Mass.)   14. 

"Wilder  v.  Ireland,  8  Jones  L.  (N.  C.)  88.    Of  course,  if  the  life  estate  has 


CHAPTEK  XV. 

COVENANT  FOR  FURTHER  ASSURANCE. 

IN  GENERAL.      §  178. 

BREACH.      ESTOPPEL.     ASSIGNABILITY.     DAMAGES.      §   179. 

§  178.  IN  GENERAL.  This  covenant  is  usually  expressed  in 
the  following  words:  "  And  that  he,  the  said  (grantor),  shall  at  all 
times  hereafter,  at  the  request  and  expense  of  the  said  (grantee), 
his  heirs  and  assigns,  make  and  execute  such  other  assurances  for 
the  more  effectual  conveyance  of  the  said  premises  as  shall  be  by 
him  reasonably  required."1  It  is  one  of  the  six  covenants  inserted 
in  conveyances  in  those  States  or  localities  in  which  it  is  customary 
to  employ  all  of  the  "  full  "  or  "  usual  "  covenants  for  title.  Actions 
at  law  for  breach  of  the  covenant  for  further  assurance  are  of  in- 
frequent occurrence,  and  few  cases  of  that  kind  are  to  be  met  with 
on  this  side  of  the  Atlantic.  The  remedy  upon  the  covenant  is 
usually  sought  in  equity  ;2  that  is,  to  compel  the  vendor  to  execute 
the  further  assurance,  or,  it  seems,  to  remove  an  incumbrance  from 
the  premises.8  The  execution  of  the  further  assurance  will,  of 
course,  operate  to  pass  any  estate  which  the  vendor  may  have  ac- 
quired after  the  execution  of  the  original  conveyance.  It  is  to  be 
observed,  however,  that  the  terms  "  general "  or  "  special "  as 
descriptive  of  the  other  covenants  for  title  is  not  applicable  to  the 

fallen  in  and  the  reversioner  has  entered,  the  covenant  is  broken.  Parker  v. 
Hichardson,  8  Jones  L.  (N.  C.)  452. 

*Rawle  Covts.  (5th  ed.)  p.  29.  This  language  does  not  in  terms  require  the 
vendor  to  remove  an  incumbrance  from  the  premises.  It  seems,  however,  that 
the  agreement  "  to  make  and  execute  such  other  assurances  "  is  construed  to 
have  that  effect.  2  Sudg.  Vend.  294  (613)  ;  Platt  Covts.  344.  King  v.  Jones, 
5  Taunt.  427. 

'Post,  §  207.  2  Sugd.  Vend.  294  (613);  Rawle  Covts.  (5th  ed.),  §  98. 
Cochran  v.  Pascault,  54  Md.  16. 

S2  Sugd.  Vend.  (14th  Eng.  ed.)  613.  King  v.  Jones,  5  Taunt.  427.  This 
covenant  will  be  found  of  great  practical  importance  where  the  purchaser 
desires  to  compel  the  grantor  to  remove  an  incumbrance  from  the  estate  which 
exceeds  the  purchase  price  of  the  premises.  This  cannot  be  done  under  a 
covenant  of  warranty.  East  Tenn.  Nat.  Bank  v.  First  Nat.  Bank,  7  Lea 
(Tenn.),  420,  and  it  may  be  doubtful  whether  it  can  be  done  under  a  cove- 
nant against  incumbrances  under  the  rule  which  limits  the  liability  of  the 
covenantor  to  the  consideration  money  and  interest.  Ante,  §  131. 


COVENANT    FOE    FURTHER    ASSURANCE.  439 

covenant  for  further  assurance  as  it  is  usually  written.  In  this 
respect,  it  is  dependent  upon  the  other  covenants  for  title,  so  that 
if  those  covenants  are  of  a  kind  that  will  not  entitle  the  purchaser 
to  a  conveyance  of  the  after-acquired  estate,  or  to  have  au  iiicum- 
brance  removed  by  the  vendor,  he  cannot  call  for  such  relief  in 
equity  merely  because  his  deed  contains  a  covenant  for  further 
assurance.  In  other  words,  such  a  covenant  in  a  mere  quit  claim 
or  release  would  not  entitle  the  purchaser  to  require  the  conveyance 
of  any  estate  which  the  grantor  may  thereafter  have  acquired.4 
Nor  can  the  purchaser  demand,  under  the  covenant  for  further 
assurance,  the  conveyance  of  a  greater  estate  or  interest  than  that 
to  which  he  is  entitled  under  the  original  conveyance.5  But  an 
express  covenant  in  a  quit-claim  deed  to  convey  the  after-acquired 
estate  will,  of  course,  entitle  the  grantee  to  such  a  conveyance-8 

A  covenant  for  further  assurance  operates  in  one  respect  as  well 
for  the  protection  of  the  grantor  as  for  the  benefit  of  the  grantee. 
Thus,  it  has  been  held  that  the  grantor  has  a  right  to  acquire  an 
outstanding  paramount  title  to  the  estate  by  reason  of  this 
covenant,  and  to  tender  the  title  so  acquired  in  satisfaction  of  a 
breach  of  the  other  covenants  for  title.7 

§  179.  WHAT  CONSTITUTES  BREACH.  ESTOPPEL.  ASSIGN- 
ABILITY.  DAMAGES.  The  covenant  for  further  assurance  is  not 
broken  until  the  grantor  refuses  to  execute  such  further  conveyance, 

•This  is  Mr.  Rawle's  opinion  (Covts.  for  Title  [5thed.l,  §  105),  citing  Davis 
v.  Tollemache,  2  Jur.  (N.  S.),  1181,  and  it  seems  clearly  sustainable,  both 
upon  reason  and  authority.  But  a  contrary  view  seems  to  have  been  taken, 
in  the  case  of  Bennett  v.  Waller,  23  111.  106,  where  it  was  said  that  under  a 
covenant  for  further  assurance  contained  in  a  quit-claim  deed  "  a  subsequent 
title  enures  as  well  as  under  a  covenant  of  warranty."  This  case  can  probably 
be  explained  upon  the  ground  that  the  quit  claim  under  consideration  was  not 
a  mere  relase  of  all  the  grantor's  right  or  interest,  but  a  conveyance  of  an 
estate  of  a  particular  description,  which  operates  to  estop  the  grantor  as  well 
as  a  conveyance  with  general  warranty.  Van  Rensselaer  v.  Kearney,  11  How. 
(U.  S.)  297.  In  Armstrong  v.  Darby,  26  Mo.  517,  it  was  held  that  a  covenant 
for  further  assurance  in  a  conveyance  with  covenant  against  incumbrances 
created  by  the  grantor  only,  did  not  oblige  the  grantor  to  remove  an  incum- 
brance  not  created  by  himself. 

5  Taylor  v.  Dabar,  1  Ch.  Cas.  274.  Uhl  v.  Ohio  River  R.  Co.,  51  W.  Va.  106; 
41  S.  E.  Rep.  340. 

•Lamb  v.  Burbank,  1  Sawy.   (C.  C.)  227. 

TCochran  v.  Pascault,  54  Md.  1.  Building  Co.  v.  Fray,  96  Va.  559;  32 
S.  E.  Rep.  58. 


devised  and  tendered  by  the  purchaser,  as  he  may  reasonably  re- 
quire, or  to  do  some  act  or  thing  necessary  to  perfect  the  title, 
such  as  may  be  reasonably  insisted  upon  by  the  purchaser.8  The 
vendor  cannot  be  required  to  execute  useless  and  unnecessary  con- 
veyances,9 nor  to  do  acts  in  themselves  impracticable  ;10  such  as  to 
procure  a  conveyance  from  a  person  non  compos  mentis,11  or  to  pro- 
cure a  certain  thing  to  be  done  by  one  physically  incapable  of  per- 
formance.12 The  thing  to  be  done  must  also  be  lawful,"  and  the 
request  therefor  must  be  made  within  a  reasonable  time." 

The  covenant  for  further  assurance  will  estop  tho  grantor  from 
setting  up  an  after-acquired  title  to  the  estate.18  The  better  opinion 
seems  to  be  that  this  covenant  operates  an  actual  transfer  of  the 
after-acquired  estate;16  it  has  been  held,  however,  that  the  cove- 
nant for  further  assurance  gives  the  grantee  merely  a  right  to  call 
for  a  conveyance  of  the  after-acquired  estate,  and  to  compel  a 
specific  performance  of  the  covenant  in  equity." 

The  covenant  for  further  assurance  is  necessarily  prospective  in 
its  operation,  and  passes  with  the  land  to  subsequent  grantees.1* 
The  breach,  when  it  occurs,  is  a  continuing  one,  and  may  be  availed 

•Rawle  Covts.  (5th  ed.),  §  99.  Bennet's  Case,  Cro.  Eliz.  9.  Miller  v. 
Parsons,  9  Johns.  (N.  Y.)  336.  Fields  v.  Squires,  Deady  (U.  S.),  388.  The 
covenant  for  further  assurance  is  broken  if  the  grantor  refuses  to  procure  a 
release  of  an  incumbrance  upon  the  premises  which  he  is  bound  to  discharge. 
Colby  v.  Osgood,  29  Barb.  (N.  Y.)  349. 

•Gwynn  v.  Thomas,  2  G.  &  J.   (Md.)   420. 

"2  Sugd.  Vend.  295  (613).  In  Armstrong  v.  Darby,  26  Md.  517,  it  was 
held  that  the  statutory  covenant  for  further  assurance  implied  in  the  words 
"  grant,  bargain  and  sell  "  embraces  only  such  incumbrances  as  the  vendor 
has  control  of;  and  that  if  a  defect  cannot  be  supplied  by  the  grantor,  as 
where  there  is  an  outstanding  mortgage  created  by  a  prior  grantor,  the 
vendor  cannot  be  made  liable  on  his  covenant  for  further  assurance. 

11  Anon.,  Moore,  124. 

"Anon.,  Moore,  124,  a  case  in  which  it  was  sought  to  compel  a  woman  in 
travail  to  execute  the  assurance. 

"Heath  v.  Crealock,  L.  R.,  10  Ch.  App.  31. 

"Nash  v.  Ashton,  T.  Jones,  195. 

"  Pierce  v.  Milwaukee  R.  Co.,  24  Wis.  563.     Bennett  v.  Waller,  23  111.  183. 

"Bennett  v.  Waller,  23  111.  183. 

"Chauvin  v.  Wagner,  18  Mo.  531. 

1$  Bennett  v.  Waller,  23  111.  97.  Colby  v.  Osgood,  29  Barb.  (Ky.)  339. 
Clarke  v.  Priest,  47  N.  Y.  Supp.  489;  21  App.  Div.  174. 


COVENANT    FOE    FURTHER    ASSURANCE.  441 

of  by  him  who  suffers  the  ultimate  damage,  though  he  be  not  the 
one  who  made  the  demand  for  further  assurance.19 

The  plaintiff  can  recover  nominal  damages  only  for  a  breach  of 
the  covenant  for  further  assurance,  unless  he  can  show  that  he  has 
sustained  actual  damages.  The  mere  refusal  of  the  vendor  to  exe- 
cute the  further  assurance  would  not  entitle  the  grantee  to  actual 
damages  unless  he  could  show  that  he  had  sustained  the  ultimate 
damage  that  would  result  from  the  refusal.20  If  the  grantor  should 
refuse  to  satisfy  an  incumbrance  on  the  premises,  and  the  grantee 
should  be  compelled  to  discharge  it  to  protect  his  title,  he  would 
doubtless  be  permitted  to  recover  as  damages  the  amount  so  paid 
by  him,  provided,  it  is  apprehended,  such  amount  do  not  exceed  the 
consideration  money  and  interest.11 

"Rawle  Covts.   (5th  ed.),  «  230. 

"Rawle  Covts.  for  Title  (5th  ed.),  §  195.  Burr  v.  Todd,  41  Pa.  St.  213, 
rtiter.  Questions  as  to  the  measure  of  damages  for  a  breach  of  the  cove- 
nant for  further  assurance  are  not  likely  to  arise.  First,  because  the  remedy 
upon  this  covenant  is  usually  sought  in  equity;  and,  secondly,  because  such 
facts  as  would  entitle  the  purchaser  to  substantial  damages  for  a  breach  of 
this  covenant  would  nearly,  if  not  always,  amount  to  a  breach  of  the  covenant 
against  incumbrances  or  that  of  warranty,  and  the  purchaser  in  most  cases 
•ontents  himself  with  an  action  on  those  covenants. 

M  This  in  analogy  to  the  rule  that  the  damages  for  a  breach  of  the  covenant 
•f  warranty,  seisin  or  against  incumbrances,  is  to  be  measured  by  the  con- 
sideration money.  No  reason  why  he  should  be  allowed  a  greater  measure  of 
damages  for  the  breach  of  the  one  covenant  than  for  the  breach  of  the  other 
can  be  perceived. 


CHAPTER  XVI. 

DETENTION  OF  THE  PURCHASE  MONEY  WHEN  THERE  HAS  BEEN 
A  BREACH  OF  THE  COVENANTS  FOR  TITLE. 

GENERAL  RULE.      §   180. 

MERGER  OF  PRIOR  AGREEMENTS.      §    181. 
PURCHASE  WITH  KNOWLEDGE  OF  DEFECT.      §  182. 
RECOUPMENT.      §   183. 

RECOUPMENT  IN  FORECLOSURE  OF  PURCHASE-MONEY   MORT- 
GAGE.     §   184. 

PARTIAL  FAILURE  OF  CONSIDERATION.     §  185. 
ASSUMPSIT  TO  TRY  TITLE.      §   186. 
WHAT  CONSTITUTES  EVICTION.      §  187. 
DISCHARGE  OF  INCUMBRANCES.      §   188. 
RULE  IN  TEXAS.      §   189. 
RULE  IN  SOUTH  CAROLINA.      §  190. 
PLEADINGS.      §   191. 
RESUME.      §  192. 

§  180.  GENERAL  RULE.  In  most  cases  the  detention  of  the 
purchase  money  by  the  purchaser  of  lands  on  failure  of  the  title, 
amounts  to  an  election  on  his  part  to  rescind  the  contract.  In  a 
subsequent  portion  of  this  work1  under  the  head  of  "  Remedies  in 
Disaffirmance  or  Rescission  of  the  Contract  of  Sale,"  the  several 
rules  which  determine  the  rights  of  the  purchaser  in  this  respect, 
will  be  found  stated  at  large,  except  the  rules  which  apply  where 
the  contract  has  been  executed  by  a  conveyance  with  certain  cove- 
nants for  title,  and  the  purchaser,  when  sued  for  the  purchase 
money,  sets  up  as  a  defense,  by  way  of  counterclaim  or  recoup- 
ment, his  eviction  from  the  premises  by  one  holding  under  a  prior 
incumbrance  or  a  better  title.  This  is  equivalent  to  an  independent 
action  by  the  purchaser  to  recover  for  a  breach  of  the  covenants  for 
title,  and  is,  therefore,  an  affirmance  of  the  contract  on  his  part. 
Hence,  it  has  been  deemed  proper  to  separate  this  branch  of  the 
law  of  detention  of  the  purchase  money  from  the  general  treatment 
of  that  subject,  and  to  discuss  the  same  in  this  place  as  one  of  the 
remedies  of  the  purchaser  in  affirmance  of  the  contract  after  the 
acceptance  of  a  conveyance  with  covenants  for  title.  We,  there- 
fore, proceed  to  lay  down  the  following  rule,  which  should  be  read 

'Post,  ch.  24,  et  seq. 


DETENTION  OF  PURCHASE  MONEY BREACH  OP  COVENANT.       443 

as  one  of  the  series  of  propositions  of  law  governing  the  right  of 
the  purchaser  to  recover  back  or  to  detain  the  purchase  money,  as 
set  forth  in  another  part  of  this  work.2 

//  the  contract  has  been  executed  by  the  delivery  and  acceptance 
of  a  conveyance  containing  a  covenant  of  warranty,  or  for  quiet 
enjoyment,  or  against  incumbrances,  and  there  has  been  such  a 
breach  of  those  covenants  as  would  give  the  grantee  a  present  right 
to  recover  substantial  damages  against  the  grantor,  the  former  will, 
in  an  action  against  him  for  the  purchase  money,  be  allowed  to  set 
up  such  breach  as  a  defense  by  way  of  recoupment  of  the  plaintiff's 
demand.  If  there  has  been  no  such  breach  the  grantee  cannot 
detain  the  purchase  money.3 

*  These  propositions  are  to  be  found,  post,   §  237. 

'Rawle  Covt.  (5th  ed.)  §326;  2  Warvelle  Vend.  919;  2  Sugd.  Vend.  (8th 
Am.  ed.)  193  (549)  note  g.  (As  to  what  constitutes  a  breach  of  the  several 
covenants  for  title,  see  ante,  the  chapters  treating  of  them  respectively.) 
Greenleaf  v.  Queen,  1  Pet.  (U.  S.)  138;  Noonan  v.  Lee,  2  Bl.  (U.  S.)  499; 
Kimball  v.  West,  15  Wall.  (U.  S.)  377.  Prevost  v.  Gratz,  3  Wash.  (C.  C.) 
439.  Brisco  v.  Mining  Co.,  82  Fed.  952.  In  the  case  of  Patton  v.  Taylor,  7 
How.  (U.  S.)  132,  it  was  held  that  the  covenantee  could  not  detain  the  pur- 
chase money,  in  the  absence  of  a  breach  of  the  covenant  of  warranty,  though 
the  covenant  was  insolvent.  To  the  text;  Peden  v.  Moore,  1  Stew.  &  P. 
(Ala.)  81;  21  Am.  Dec.  649,  06.  diet.;  Wilson  v.  Jordan,  3  Stew.  &  P.  (Ala.) 
92;  Dunn  v.  White,  1  Ala.  645;  Cullum  v.  Bank,  4  Ala.  21;  37  Am.  Dec.  725; 
Cole  v.  Justice,  8  Ala.  793;  Tankersly  v.  Graham,  8  Ala.  247;  Knight  v. 
Turner,  11  Ala.  639;  McLemore  v.  Mabson,  20  Ala.  139;  Thompson  v.  Chrisian, 
28  Ala.  399;  Helvenstein  v.  Higgason,  35  Ala.  262;  Garner  v.  Leaverett,  32 
Ala.  410;  Thompson  v.  Sheppard,  85  Ala.  611;  5  So.  Rep.  334;  Frank  v. 
Riggs,  93  Ala.  252;  9  So.  Rep.  359;  Heflin  v.  Phillip,  (Ala.)  11  So.  Rep.  729. 
Wheat  v.  Dotson,  12  Ark.  699;  McDaniel  v.  Grace,  15  Ark.  135;  Robarda  v. 
Cooper,  16  Ark.  288;  Key  v.  Henson,  17  Ark.  254;  Hoppes  v.  Cheek,  21  Ark. 
585;  Lewis  v.  Davis,  21  Ark.  239;  Busby  v.  Treadwell,  24  Ark.  457;  Sorrella 
v.  McHenry,  38  Ark.  127.  But  in  a  suit  to  foreclose  a  vendor's  lien  the  cove- 
nantee may  have  credit  for  all  sums  necessarily  paid  by  him  to  protect  the 
title.  Morris  v.  Ham,  47  Ark.  293.  Possession  of  a  part  of  the  premises  by  a 
mere  intruder  without  color  of  title,  through  a  mistake  as  to  boundaries,  is 
not  such  a  breach  of  the  covenant  for  quiet  enjoyment  as  will  entitle  the 
purchaser  to  detain  the  purchase  money.  Hoppes  v.  Cheek,  21  Ark.  585. 
Where  the  vendor  agreed  to  convey  the  property  before  payment  of  the  pur- 
chase money,  and  the  purchaser  accepted  a  deed  which  conveyed  none  of  the 
property  purchased,  and  afterwards  discovered  the  error,  it  was  held  that  he 
might  refuse  to  pay  the  purchase  money  until  the  vendor  should  execute  a 
proper  conveyance  of  the  premises.  McConnell  v.  Little,  51  Ark.  333;  US. 
W.  Rep.  371.  To  the  text:  Salmon  v.  Hoffman,  2  Cal.  138;  56  Am.  Dec.  322; 
Fowler  v.  Smith,  2  Cal.  39.  In  Norton  v.  Jackson,  5  Cal.  262,  it  was  held 


444  MARKETABLE    TITLE    TO    REAL    ESTATE. 

"  Generally  speaking,"  says  Sugden,  "  a  purchaser,  after  a  con- 
veyance, has  no  remedy  except  upon  the  covenants  he  has  obtained, 

that  eviction  by  process  of  law  was  necessary  to  enable  the  covenantee  to 
set  up  breach  of  warranty  as  a  defense  in  an  action  for  the  purchase  money. 
To  the  text:  Kurd  v.  Smith,  5  Colo.  233.  Smoot  v.  Coffin,  4  Mackey  (D.  C.), 
407;  Bletz  v.  Willis,  19  D.  C.  449.  McGhee  v.  Jones,  10  Ga.  135;  Roberts  v. 
Woolbright,  1  Ga.  Dec.  98.  Brantley  Co.  v.  Johnson,  102  Ga.  850;  29  S.  E. 
Rep.  486.  But  in  Smith  v.  Hudson,  45  Ga.  208,  it  was  held  that  the  purchaser 
might  detain  the  purchase  money  if  he  could  show  that  his  remedey  upon  the 
warranty  would  not  protect  him.  It  would  seem,  also,  that  he  might  detain 
the  purchase  money  in  that  State  if  there  had  been  a  judgment  against  him 
in  ejectment,  though  there  had  been  no  actual  eviction,  since  such  a  judgment, 
without  eviction,  amounts  to  a  breach  of  warranty  in  Georgia.  Clark  v. 
Whitehead,  47  Ga.  516,  overruling  Leary  v.  Durham,  4  Ga.  593.  Where  a 
purchaser  caused  the  conveyance  with  warranty  to  be  made  to  a  sub-purchaser, 
himself  remaining  liable  for  the  purchase  money,  it  was  held  that  he  could 
not,  in  an  action  against  him  for  the  purchase  money,  avail  himself  of  the 
breach  of  warranty  in  the  conveyance  to  the  sub-purchaser,  even  though  he 
held  the  sub-purchaser's  notes  as  collateral.  Gordon  v.  Phillips,  54  Ga.  240. 
To  the  text:  Deal  v.  Dodge,  26  111.  458;  Vining  v.  Leeman,  45  111.  246; 
Whitlock  v.  Denlinger,  59  111.  96;  Lafarge  v.  Matthews,  68  111.  328;  People 
v.  Sisson,  98  111.  335.  The  same  rule  applies  in  case  of  the  eviction  of  a  lessee 
by  paramount  title.  Pepper  v.  Rowley,  73  111.  262.  In  Buckles  v.  Northern 
Bank  of  Ky.,  63  111.  268,  271,  the  rule  is  qualified  by  the  statement  that  such 
a  defense  cannot  be  made  so  long  as  the  possession  of  the  vendee  remains 
undisturbed  and  the  paramount  title  unasserted.  The  qualification  is  obscure, 
in  that  it  does  not  appear  what  is  meant  by  the  assertion  of  the  paramount 
title,  whether  a  suit  prosecuted  or  threatened,  or  a  suit  which  has  resulted 
in  a  judgment  of  eviction.  The  rule  that  failure  of  title  cannot  be  set  up  as 
a  defense  where  there  has  been  no  breach  of  the  vendor's  covenants  does  not 
apply  where  the  purchase-money  notes  and  mortgage  expressly  provide  that 
they  shall  not  be  paid  until  the  title  has  been  perfected.  Smith  v.  Newton, 
38  111.  230;  Weaver  v.  Wilson,  48  111.  128.  Whisler  v.  Hicks,  5  Bl.  (Ind.) 
100;  33  Am.  Dec.  454;  Smith  v.  Ackerman,  Id.  541.  In  both  of  these  cases 
the  objection  made  to  the  payment  of  the  purchase  money  was  an  outstanding 
contingent  right  of  dower  in  the  wife  of  the  vendor.  To  the  text:  Buell  v. 
Tate,  7  Bl.  (Ind.)  55;  Pomeroy  v.  Burnett,  8  Bl.  (Ind.)  142;  Oldfield  v. 
Stevenson,  1  Ind.  153;  Streeter  v.  Henley,  1  Ind.  401;  Clark  v.  Snelling, 
1  Ind..  382;  Hooker  v.  Folson,  4  Ind.  90;  Wilkerson  v.  Chadd,  14  Ind.  448; 
Laughery  v.  McLean,  14  Ind.  106;  Estep  v.  Estep,  23  Ind.  114;  Starkey  v. 
Neese,  30  Ind.  222 ;  Stephens  v.  Evans,  30  Ind.  39 ;  Hanna  v.  Shields,  34  Ind. 
84;  James  v.  Hayes,  34  Ind.  272,  distinguishing  Murphy  v.  Jones,  7  Ind.  529; 
Brewer  v.  Parker,  34  Ind.  172;  Cartwright  v.  Briggs,  41  Ind.  184;  Strain  v. 
Huff,  45  Ind.  222 ;  Cornwell  v.  Clifford,  45  Ind.  392 ;  Mahoney  v.  Robbins,  49 
Ind.  146;  Jones  v.  Noe,  74  Ind.  368;  Gibson  v.  Richart,  83  Ind.  313;  Bethell 
v.  Bethell,  92  Ind.  318;  Marsh  v.  Thompson,  102  Ind.  272;  1  N.  E.  Rep.  630; 
Parker  v.  Culbertson,  (Ind.)  27  N.  E.  Rep.  619.  Grubbs  v.  Barber,  102  Ind. 
131;  1  N.  E.  Rep.  636;  Pearson  v.  Wood,  27  Ind.  App.  419;  61  N.  E.  Rep. 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.       445 

although  evicted  for  want  of  title ;  and  however  fatal  the  defect  of 
title  may  be,  if  there  is  no  fraudulent  concealment  on  the  part  of 

593.  In  Small  v.  Reeves,  14  Ind.  163,  a  leading  case  in  that  State,  the  rule 
was  thus  stated:  "Where  a  deed  (with  covenants)  is  made  and  accepted, 
and  possession  taken  under  it,  want  of  title  will  not  enable  the  purchaser  to 
resist  the  payment  of  the  purchase  money  or  recover  more  than  nominal 
damages  on  his  covenants  while  he  retains  the  deed  and  possession,  and  has 
been  subjected  to  no  inconvenience  or  expense  on  account  of  the  defect  of 
title."  In  Fehrle  v.  Turner,  77  Ind.  530,  a  purchaser  was  permitted  to  show 
that  a  suit  to  recover  part  of  the  land  was  being  prosecuted  against  him,  and 
to  enjoin  proceedings  to  collect  the  purchase  money,  until  the  adverse  claim- 
ant's suit  should  be  determined.  Overruling  Strong  v.  Downing,  34  Ind.  300. 
In  Peterson  v.  McCullough,  50  Ind.  35,  the  purchaser  claimed  an  abatement  of 
the  purchase  money  by  reason  of  an  incumbrance  resulting  from  the  right  of 
a  canal  company  to  overflow  part  of  the  land.  Relief  was  denied  on  the 
ground  that  the  evidence  did  not  show  an  easement  in  the  company  by  pre- 
scription. To  the  text:  Allen  v.  Pegram,  16  Iowa,  163;  Nosier  v.  Hunt,  18 
Iowa,  212;  Gifford  v.  Ferguson,  47  Iowa,  451;  Burrows  v.  Stryker,  47  Iowa, 
477.  Of  course,  it  is  no  defense  to  an  action  for  the  purchase  money  that 
incumbrances  on  the  land  were  not  removed  by  the  grantor,  until  a  few  days 
before  the  commencement  of  such  suit.  Winch  v.  Bolton,  (Iowa)  63  N.  W. 
Rep.  330.  In  Blasser  v.  Moats,  (Iowa)  46  N.  W.  Rep.  1076,  a  purchaser  who 
had  taken  a  conveyance  with  general  warranty  and  a  verbal  agreement  that 
the  vendor  would  procure  his  wife  to  sign  the  deed,  was  permitted  to  resist 
the  payment  of  the  purchase  money  on  the  ground  that  the  wife  had  not 
signed  the  deed.  To  the  text :  Scantlin  v.  Anderson,  12  Kans.  85 ;  Chambers 
v.  Cox,  23  Kans.  393;  Sunderland  v.  Bell,  39  Kans.  21,  663.  Ingraham  v. 
Ward,  56  Kans.  550;  44  Pac.  Rep.  14.  Lewis  v.  Norton,  5  T.  B.  Mon.  (Ky.) 
1;  Rawlins  v.  Timberlake,  6  T.  B.  Mon.  (Ky.)  225;  Miller  v.  Long,  2  A.  K. 
Marsh.  (Ky.)  334;  Gale  v.  Conn,  3  J.  J.  Marsh.  (Ky.)  538;  Simpson  v. 
Hawkins,  1  Dana  (Ky.),  303;  Taylor  v.  Lyon,  2  Dana  (Ky.),  276;  Casey  r. 
Lucas,  2  Bush  (Ky.),  55;  Trumbo  v.  Lockridge,  4  Bush  (Ky.),  416;  Butte 
v.  Riffe,  78  Ky.  353;  Bellfont  Iron  Wks.  v.  McGuire,  (Ky.)  11  S.  W.  Rep. 
203.  Com.  School  Dist.  v.  Conrad,  19  Ky.  Law  R.  199;  39  S.  W.  Rep.  497; 
Vivian  v.  Stevens,  (Ky.)  56  S.  W.  Rep.  520.  In  Pryse  v.  McGuire,  81  Ky.  608, 
it  was  heid  that  if  the  purchaser  had  never  been  put  in  possession,  he  might 
defend  an  action  for  the  purchase  money  on  the  ground  of  failure  of  the  title, 
though  there  had  been  no  eviction.  It  will  be  remembered,  however,  that 
inability  of  the  grantee  to  get  possession  is  a  constructive  eviction  for  the 
premises.  Ante,  §  146.  If  the  purchaser  take  a  deed  with  general  warranty 
from  the  husband,  he  will  be  deemed  to  have  relied  on  the  warranty,  and  can- 
not enjoin  the  collection  of  the  purchase  money  unless  he  be  evicted  by  the 
doweress.  Booker  v.  Meri weather,  4  Litt.  (Ky.)  212.  A  restriction  in  a  prior 
deed  by  which  a  subsequent  grantee  is  preventable  from  selling  liquor  on  the 
premises,  will  not  entitle  such  grantee  to  detain  the  purchase  money,  the 
covenantor  being  alive  and  solvent.  Smith  v.  Jones,  (Ky. )  31  S.  W.  Rep. 
475.  In  Louisiana,  owing  to  the  prevalence  of  the  civil  law,  which  disregards 
the  rule  caveat  emptor,  the  distinction  between  executed  and  executory  con- 


446  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

the  seller,  the  purchaser's  only  remedy  is  under  the  covenants."* 
Practically  the  same  rule  exists  in  many  of  the  American  States, 

tracts  with  respect  to  the  detention  of  the  purchase  money  on  failure  of  the 
tifle,  is  not  observed.  A  perfect  outstanding  title  in  a  stranger  ia  held 
equivalent  to  eviction  in  that  State,  and  entitles  the  grantee  to  rescind  the 
contract.  McDonald  v.  Vaughan,  14  La.  Ann.  716.  One  who  buys  land  at  a 
sale  under  execution  against  himself,  and  sells  the  land  again,  cannot  refuse 
to  pay  the  original  price  on  the  ground  that  the  property  is  incumbered  — 
no  claim  on  that  account  having  been  made  against  him.  Oakey  v.  Drum- 
mond,  7  La.  Ann.  205.  To  the  text:  Wentworth  v.  Goodwin,  21  Me.  150, 
semble;  Jenness  v.  Parker,  24  Me.  289,  semble.  Timins  v.  Shannon,  19  Md. 
296,  316;  81  Am.  Dec.  632.  In  Middlekauff  v.  Barrick,  4  Gill  (Md.),  290, 
it  was  broadly  stated  that  if  there  was  no  fraud  the  purchaser  had  no  remedy 
except  upon  his  covenants,  although  he  had  been  evicted  by  an  adverse 
claimant.  It  does  not  appear,  however,  that  this  language  was  intended  to 
restrict  the  covenantee's  right  to  avail  himself  of  a  breach  of  covenant  by  way 
of  recoupment.  To  the  text:  Lothrop  v.  Snell,  11  Cush.  (Mass.)  453;  Bart- 
lett  v.  Tarbell,  12  Allen  (Mass.),  125;  Knapp  v.  Lee,  3  Pick.  (Mass.)  459; 
Rice  v.  Goddard,  14  Pick.  (Mass.)  293.  Haldane  v.  Sweet,  55  Mich.  196;  20 
N.  W.  Rep.  902;  Pfirrman  v.  Wattles,  (Mich.)  49  N.  W.  Rep.  40;  Leal  v. 
Terbush,  52  Mich.  100;  17  N.  W.  Rep.  713,  semMe.  This  was  an  action  to 
recover  back  purchase  money  paid  by  a  covenantee.  The  court  does  not  advert 
to  the  rule  remitting  the  purchaser  to  his  action  on  the  covenants,  but  rests 
its  decision  refusing  the  purchaser  relief,  on  the  ground  that  the  entire  con- 
sideration had  not  failed.  To  the  text:  Anderson  v.  Lincoln,  5  How.  (Miss.) 
279;  Coleman  v.  Rowe,  5  How.  (Miss.)  460;  37  Am.  Dec.  164.  The  contract 
was  executory  in  this  case,  but  the  vendor  had  executed  a  bond  to  make  title. 
Vick  v.  Percy,  7  Sm.  &  M.  (Miss.)  256;  45  Am.  Dec.  303;  Walker  v.  Gilgert,  7 
Sm.  &  M.  (Miss.)  456;  Hoy  v.  Taliaferro,  8  Sm.  &  M.  (Miss.)  727;  McDonald 
v.  Green,  9  Sm.  &  M.  (Miss.)  138,  semlle;  Duncan  v.  Lane,  8  Sm.  &  M. 
(Miss.)  744;  Gilpin  v.  Smith,  11  Sm.  &  M.  (Miss.)  129;  Heath  v.  Newman, 
11  Sm.  &  M.  (Miss.)  201;  Dennis  v.  Heath,  11  Sm.  &  M.  (Miss.)  206;  49 
Am.  Dec.  51;  Johnson  v.  Jones,  13  Sm.  &  M.  (Miss.)  580;  Wailes  v.  Cooper, 
24  Miss.  232;  Harris  v.  Rowan,  24  Miss.  504;  Winstead  v.  Davis,  40  Miss. 
785;  Ware  v.  Houghton,  41  Miss.  382;  93  Am.  Dec.  258,  where,  however  the  . 
warranty  was  of  title  to  a  slave ;  Guice  v.  Sellers,  43  Miss.  52 ;  5  Am.  Rep. 
476;  Miller  v.  Lamar,  43  Miss.  382.  Cooley  v.  Rankin,  11  Mo.  647;  Connor  v. 
Eddy,  25  Mo.  75;  Wellman  v.  Dismukes,  42  Mo.  101;  Eddington  v.  Nix,  49 
Mo.  134;  Wheeler  v.  Standley,  40  Mo.  509;  Mitchell  v.  McMullen,  59  Mo. 
252 ;  Hart  v.  Railroad  Co.,  65  Mo.  509 ;  Key  v.  Jennings,  66  Mo.  356 ;  Hunt 
v.  Marsh,  80  Mo.  398.  A  purchaser  who  accepts  a  conveyance  from  a  stranger 
thereby  waives  his  right  to  recover  from  the  vendor  money  paid  in  removing 
incumbrances  from  the  land.  Herryford  v.  Turner,  67  Mo.  296.  To  the  text: 
Mills  v.  Saunders,  4  Neb.  190.  Perkins  v.  Bamford,  3  N.  H.  522;  Getchell  v. 
Chase,  37  N.  H.  106;  Drew  v.  Towle,  7  Fost.  (N.  H.)  412;  54  Am.  Dec.  309, 
where  the  rule  stated  in  the  text  was  held  to  apply  only  where  there  has  been 


4Sudg.  Vend.   (8th  Am.  ed.)   383   (251);  2  id.  193  (549). 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.       447 

with  this  qualification,  that  in  any  case  in  which  there  has  been  a 
breach  of  the  covenants  which  the  purchaser  has  received,  for 

a  total  failure  of  the  consideration.  To  the  text:  Beach  v.  Waddell,  4  Halst. 
Ch.  (N.  J.)  299.  Kuhnen  v.  Parker,  56  N.  J.  Eq.  286;  38  Atl.  Rep.  641. 
In  Copper  v.  Bloodgood,  32  N.  J.  Eq.  209,  it  was  held  that  the  necessity  of 
obtaining  a  lease  of  riparian  rights  from  the  State  could  not  be  held  an 
eviction  entitling  the  covenantee  to  detain  the  purchase  money  where  he  might 
have  obtained  the  land  itself  by  appropriation.  To  the  text:  Bumpuss  v. 
Plainer,  1  Johns.  Ch.  (N.  Y.)  213;  Abbott  v.  Allen,  2  Johns.  Ch.  (N.  Y.) 
519;  7  Am.  Dec.  554;  Woodruff  v.  Bunce,  9  Paige  Ch.  (N.  Y.)  443;  38  Am. 
Dec.  559;  Miller  v.  Avery,  2  Barb.  Ch.  (N.  Y.)  594;  Woodworth  v.  Jones,  2 
Johns.  Cas.  (N.  Y.)  417;  Lattin  v.  Vail,  17  Wend.  (N.  Y.)  188;  Whitney  v. 
Lewis,  21  Wend.  (N.  Y.)  131;  Tallmadge  v.  Wallis,  25  Wend.  (N.  Y.)  118; 
Edwards  v.  Bodine,  26  Wend.  (N.  Y.)  109;  Batterman  v.  Pierce,  3  Hill  (N. 
Y.),  171;  Lamerson  v.  Marvin,  8  Barb.  (N.  Y.)  14;  Farnham  v.  Hotchkiss, 
2  Keyes  (N.  Y.),  9;  Ryerson  v.  Willis,  81  N.  Y.  277;  Gifford  v.  Society,  104 
N.  Y.  139;  10  N.  E.  Rep.  39;  Dunning  v.  Leavitt,  85  N.  Y.  30;  39  Am.  Rep. 
617;  Clanton  v.  Surges,  2  Dev.  Eq.  (N.  C.)  13;  Wilkins  v.  Hogue,  2  Jones 
Eq.  (N.  C.)  479.  In  Mills  v.  Abraham,  6  Ired.  (N.  C.)  456,  it  was  held  that 
a  purchaser  with  full  knowledge  of  the  defective  title,  and  taking  covenants 
for  his  protection,  could  not  resist  the  payment  of  the  purchase  money  if  the 
covenants  were  broken.  In  Ohio  the  purchaser  is  by  statute  permitted  to 
retain  the  possession  and  defend  a  suit  for  the  purchase  money  by  bringing 
in  the  person  claiming  an  adverse  estate  or  interest,  so  that  the  rights  of  all 
parties  may  be  adjusted  in  the  same  action.  Rev.  Stat.  Ohio,  1884,  §  5780. 
Before  the  enactment  of  that  statute  the  rule  was  as  stated  in  the  text. 
Stone  v.  Buckner,  12  Ohio,  73;  Edwards  v.  Norris,  1  Ohio,  524;  Hill  v.  Butler, 
6  Ohio,  216.  Under  the  same  statute  the  purchaser  might  have  deducted 
from  the  purchase  money  by  way  of  counterclaim  the  amount  of  an  incum- 
brance  on  the  premises  discharged  by  him.  Craig  v.  Heis,  30  Ohio  St.  550. 
For  the  construction  of  this  statute  see  Templeton  v.  Kramer,  24  Ohio  St. 
554.  In  Purcell  v.  Heerny,  28  Ohio  St.  39,  it  was  held  that,  independent  of 
such  statutory  provision,  the  purchaser  must  show  an  eviction  before  he  can 
claim  relief  against  payment  of  the  purchase  money.  To  the  text:  Fellows 
v.  Evans,  33  Oreg.  30;  53  Pac.  Rep.  491;  Failing  v.  Osborne,  3  Oreg.  498. 
In  this  case  a  stipulation  of  the  vendors  that  "  if  it  should  be  adjudged  that 
they  had  no  legal  right  to  sell,  and  if  the  purchaser  by  reason  thereof  be 
legally  compelled  to  give  up  the  premises,"  they  should  refund  the  purchase 
money,  was  given  the  effect  of  a  covenant  of  warranty,  and  the  purchaser 
held  not  entitled  to  detain  the  purchase  money  unless  there  had  been  an 
actual  or  constructive  ouster.  The  Pennsylvania  decisions  on  the  point 
stated  in  the  text  will  be  found  post,  §  271.  In  an  action  on  a  purchase- 
money  mortgage  the  defendant  may  set  off  damages  arising  from  a  breach  of 
warranty  of  the  title,  but  he  will  not  be  entitled  to  interest  on  such  damages 
if  he  remain  in  possession,  even  though  a  judgment  in  ejectment  had  been 
recovered  against  him.  Wacker  v.  Straub,  88  Pa.  St.  32.  Price  v.  Hubbard, 
8  S.  Dak.  92;  65  N.  W.  Hep.  436.  To  the  text:  Elliott  v.  Thompson,  4  Humph. 
(Tenn.)  09;  40  Am.  Dec.  630;  White  v.  Ewing,  69  Fed.  451;  Young  Y.  Butler, 


448  MARKETABLE    TITLE    TO    REAL    ESTATE. 

which  he  would  be  entitled  to  recover  substantial  damages,  he  may 
in  an  action  against  him  for  the  purchase  money  recoup  the  amount 
of  those  damages  from  the  plaintiff's  demand.5  But  so  long  as 
there  has  been  no  such  breach  of  the  covenant  of  warranty,  or  for 
quiet  enjoyment,  or  against  incumbrances,  as  would  entitle  the 
covenantee  to  recover  substantial  damages  against  the  covenantor, 
the  former  cannot,  either  at  law  or  in  equity,  resist  the  payment  of 
the  purchase  money.  In  some  of  the  States,  however,  as  will  here- 
after be  seen,  the  rigor  of  this  rule  is  relaxed  where  suit  is 
threatened  or  prosecuted  by  the  adverse  claimant,  or  where  from 
non-residence  or.  insolvency  of  the  covenantor,  judgment  against 
him  for  breach  of  his  covenant  either  cannot  be  obtained,  or,  if 
obtained,  will  prove  an  unavailing  remedy.6 

1  Head  (Term.),  640,  the  court  saying:  "From  the  facts  in  this  record  we 
have  no  doubt  that  it  was  the  purpose  of  the  purchaser  from  the  beginning 
to  obtain  the  deed  and  the  possession  of  the  property  without  paying  for  it 
until  such  time  as  it  suited  his  convenience  to  do  so,"  a  remark  applicable 
to  a  large  percentage  of  injunctions  against  the  collection  of  the  purchase 
money.  The  fact  that  the  vendor's  title  is  merely  equitable  will  not  entitle 
the  purchaser  to  detain  the  purchase  money.  The  subsequently  acquired  legal 
title  will  enure  to  the  benefit  of  the  purchaser  under  the  vendor's  covenant 
of  warranty.  McWhirter  v.  Swaffer,  6  Baxt.  (Tenn.)  342.  In  McNew  T. 
Walker,  3  Humph.  (Tenn.)  186,  the  vendor  having  only  a  life  estate  in  the 
premises  conveyed  the  same  in  fee  with  general  warranty.  The  court  refused 
to  enjoin  the  collection  of  the  purchase  money,  there  being  no  fraud  and  no 
eviction  alleged.  In  Texas  Ry.  Co.  v.  Gentry,  69  Tex.  625;  8  S.  W.  Rep.  98, 
it  was  held  that  a  purchaser  of  a  railroad  property  with  warranty  could  not 
resist  the  payment  of  the  purchase  money  on  the  ground  that  certain  rights 
of  way  enjoyed  by  the  company  had  not  been  acquired,  if  proceedings  for 
compensation  by  the  true  owner  were  barred  by  the  Statute  of  Limitations. 
For  the  Texas  doctrine  relating  to  detention  of  the  purchase  money,  see 
post,  §  189.  To  the  text:  Dix  v.  School  Dist.,  22  Vt.  309,  semble.  As  to  the 
rule  governing  the  right  of  the  purchaser  to  detain  the  purchase  money,  as 
enforced  in  Virginia,  where  the  title  is  found  to  be  bad,  after  the  accept- 
ance of  a  conveyance,  see  post,  §  337.  To  the  text:  Horton  v.  Arnold,  18 
Wis.  212;  Eaton  v.  Tallmadge,  2&  Wis.  526;  Smith  v.  Hughes,  50  Wis.  620; 
7  N.  W.  Rep.  653;  Bardeen  v.  Markstrvrm,  64  Wis.  613;  25  N.  W.  Rep.  565. 
Campbell  v.  Medbury,  5  Biss.  (C.  C.)  33.  In  Hall  v.  Gale,  14  Wis.  54,  and 
Walker  v.  Wilson,  13  Wis.  522,  the  non-existence  of  a  right  to  raise  the  water 
in  a  mill  dam  to  a  specified  height,  the  purchaser  having  been  enjoined  by  the 
adjacent  proprietors,  was  held  a  breach  of  the  covenant  of  warrant/ 
entitling  him  to  detain  the  purchase  money. 

5  Ante,  cases  cited  n.  3,  p.  443. 

•Post,  chs.  26  and  34.     In  White  v.  Ewing,  69  Fed.  Rep.  451,  it  was  held 
that  the  insolvency  of  'the  grantor  could  not  be  availed  of  as  a  defence  to  an 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.   449 

An  illustration  of  the  rule  stated  in  the  foregoing  proposition  is 
afforded  by  the  early  and  leading  case  of  Abbott  v.  Allen.7  There 
the  purchaser  entered  under  a  conveyance  with  covenants  of  seisin 
and  general  warranty,  and  executed  a  mortgage  to  secure  the  de- 
ferred payments  of  the  purchase  money.  When  the  mortgage  was 
about  to  be  enforced,  the  purchaser  prayed  an  injunction  against 
the  sale  of  the  premises,  but  set  out  in  his  bill  facts  which  went  no 
farther  than  to  show  that  his  title  was  doubtful  or  unmarketable. 
The  injunction  was  dissolved  by  Chancellor  JAMES  KENT,  who  said 
that  "  it  would  lead  to  the  greatest  inconvenience  and  perhaps 
abuse,  if  a  purchaser  in  the  actual  enjoyment  of  land,  when  no 
person  asserts  or  takes  any  measures  to  assert  a  hostile  claim,  can 
be  permitted  en  suggestion  of  a  defect  or  failure  of  title,  and  on  the 
principle  of  quja  timet,  to  stop  the  payment  of  the  purchase  money, 
and  of  all  proceedings  at  law  to  recover  it." 

Of  course  if  the  deed  contain  an  express  provision  that  the  pur- 
chase money  may  be  detained  or  abated  if  adverse  claims  or  ih- 
cumbrances  should  be  asserted  against  the  property,  the  rule  re- 
stricting the  purchaser  to  his  covenants  in  case  the  title  fails  does 
not  apply.  The  purchaser  is  at  liberty  to  protect  himself  by  special 
covenants  or  agreements  ;8  and  these  it  is  apprehended  will  prevail 

action  for  the  purchase-money,  if  the  grantor's  grantor,  who  had  conveyed 
with  general  warranty,  was  solvent. 

7  2  Johns.  Ch.   (N.  Y.)   519;  7  Am.  Dec.  554. 

*Platt  v.  Gilchrist,  3  Sandf.  (N.  Y.)  118,  where  the  court  said:  "The  possi- 
bility that  the  title  might  fail  and  the  purchaser  be  evicted,  was  in  the  minds 
of  the  parties.  They  might  also  have  provided  that  in  case  of  a  claim  being 
made  by  title  paramount  before  actual  payment  of  the  consideration  money, 
the  right  of  the  vendor  to  call  for  its  payment  should  be  suspended.  But 
this  they  have  not  thought  proper  to  do,  and  this  court  can  with  no  more 
propriety  add  such  a  clause  to  the  contract  and  suspend  the  collection  of  the 
purchase  money,  than  it  can  suspend  the  collection  of  rent  expressly  cove- 
nanted to  be  paid,  upon  the  destruction  of  the  buildings,  where  the  parties 
have  not  themselves  provided  against  it."  In  Walter  v.  Johnson,  2  Nev.  354, 
the  deed  contained  a  provision  that  the  purchase  money  should  be  abated  if 
the  grantee  had  to  pay  for  the  release  of  any  adverse  claim  against  the 
property.  The  court  held  that  the  words  "  adverse  claim  "  meant  a  valid  and 
paramount  title,  and  that  the  grantee  was  not  entitled  to  credit  for  a  sum 
paid  to  a  claimant  without  color  of  title.  In  Chaplin  v.  Briscoe,  11  Sm.  & 
M.  (Miss.)  372,  where  the  deed  contained  a  similar  stipulation,  it  was  held 
that  the  covenantee  might  avail  himself  to  the  defense  of  failure  of  the  title, 
though  he  had  conveyed  away  his  interest  in  the  premises  to  a  stranger, 

29 


450  MARKETABLE    TITLE    TO    REAL    ESTATE. 

over  the  usual  and  formal  covenants  for  title  contained  in  the  deed, 
if  inconsistent  with  them. 

An  important  exception  to  the  general  rule  that  a  purchaser  who 
has  received  a  deed  with  covenants  of  general  warranty  cannot 
detain  the  purchase  money  unless  he  has  been  evicted,  exists  where 
the  deed  conveys  an  unknown,  uncertain  and  undetermined  in- 
terest in  the  land,  and  the  grantee  has  never  been  let  into  posses- 
sion. Thus  where  the  grantor  conveyed  all  of  his  "  right,  title  and 
interest  in  and  to  a  certain  undivided  tract  of  land,"  with  general 
warranty,  and  it  appeared  that  he  had  no  interest  whatever  in  the 
land  conveyed,  that  fact  was  held  a  complete  defense  to  an  action 
for  the  purchase  money.9  It  has  been  held  that  the  right  to  set  up 
a  breach  of  warranty  as  a  defense  to  an  action  for  the  purchase 
money  is  not  affected  by  the  fact  that  the  land  was  conveyed  by  the 
defendant's  direction  to  a  third  party,  and  the  warranty  made  to 
him.10  If  the  purchaser  agrees  to  take  his  title  from  a  third  person 
who  has  nothing  to  do  with  the  bargain,  and  accepts  from  that 
person  a  conveyance  with  covenants  for  title,  he  must  look  to  those 
covenants  for  redress  if  the  title  fails,  and  cannot  on  that  ground 
defend  an  action  by  the  vendor  to  recover  the  purchase  money.11 
Whatever  judgment  is  rendered  on  the  defendant's  plea  setting  up 
a  breach  of  covenant  in  an  action  against  him  for  the  purchase 
money,  whether  against  him  or  in  his  favor,  will  be  res  adjudicata 
of  his  rights  with  respect  to  the  alleged  breach,  and  will  estop  him 
from  afterwards  maintaining  an  action  on  the  covenant  to  recover 
damages  for  the  breach.12 

The  purchase  money  cannot  be  detained  in  a  case  in  which  the 
covenantee  has  executed  a  release  of  the  warranty  t  j  his  grantor.1* 

The  rule  that  a  grantee  with  covenants  of  warranty  cannot  resist 
the  payment  of  the  purchase  money  until  actual  or  threatened 

•  Lewis  v.  West,  23  Mo.  App.  495,  the  court  saying  that  "  to  such  a  case 
would  seem  to  apply  the  principle  on  which  is  based  the  rule  that  the  cove- 
nants of  seisin  (warranty  also)  are  broken  as  soon  as  made  when  the  land 
conveyed  is  in  the  possession  of  a  stranger  at  the  date  of  the  deed  under  a 
paramount  title,  and  substantial  damages  are  recoverable  by  the  grantee." 

"Bottorf  v.  Smith,  7  Ind.  673. 

"Leonard  v.  Austin,  2  How.  L.   (Miss.)    888. 

"Tallmadge  v.  Wallis,  25  Wend.  (N.  Y.)  116.  Tillotaon  v.  Grapes,  4  N.  EL 
444,  449. 

'"'White  v.  Furtzwangler,  81  Ga.  66;  6  S.  E.  Rep.  692. 


DETENTION  OF  PURCHASE  MONEY BEEACH  OF  COVENANT.       451 

eviction,  does  not  apply  where  the  grantor  pointed  out,  at  the  time 
of  the  sale,  incorrect  boundaries,  enclosing  more  land  than  was 
actually  conveyed." 

§  181.  MERGER  OF  PRIOR  AGREEMENTS.  The  principle  upon 
which  these  decisions  largely  rest  is  that  the  purchaser  by  demand- 
ing covenants  for  title  and  receiving  them  has  provided  his  remedy 
in  case  the  title  fails,  and  that  in  those  covenants  are  merged  all 
prior  agreements  of  the  parties  respecting  the  title,  whether  oral  or 
written,  that  are  inconsistent  with  them.15  There  are  exceptions  to 
this  doctrine  of  merger,  however;  namely,  that  promises  made  by 
a  vendor,  after  the  execution  of  a  conveyance  but  before  it  has 
been  delivered  and  accepted,  that  he  will  discharge  incumbrances 
on  the  premises  are  not  merged  in  the  conveyance  afterwards  ac- 
cepted. Nor  are  such  promises  within  the  Statute  of  Frauds  or 
obnoxious  to  the  rule  that  evidence  of  a  contemporaneous  verbal 
agreement  will  not  be  received  to  alter  the  terms  of  a  written  con- 
tract.18 Collateral  stipulations  of  which  the  conveyance  is  not  neces- 

"King  v.  Bressie  (Tex.  Civ.  App.),  32  S.  W.  Rep.  729.  This  decision 
might  well  be  rested  upon  the  ground  of  fraud  or  mistake  of  the  grantor. 

"Rawle  Covts.  (5th  ed.)  §  320.  Miller  v.  Avery,  2  Barb.  Ch.  (N.  Y.)  582, 
where  it  was  said  that  the  doctrine  of  merger  applied  as  well  in  equity  as 
at  law.  Hunt  v.  Amidon,  4  Hill  (N.  Y.),  345;  40  Am.  Dec.  283.  Bryan  v. 
Swain,  56  Cal.  616.  A  verbal  agreement  between  the  parties  at  the  time  of 
the  execution  of  a  deed  with  warranty  and  a  purchase-money  note  and  mort- 
gage payable  in  ninety  days,  that  if  within  the  ninety  days  the  title  be  found 
bad  it  may  be  rejected,  has  been  held  to  be  merged  in  the  deed  and  not 
available  as  a  defense  to  the  foreclosure  of  the  mortgage  if  the  title  be  found 
bad.  Jewell  v.  Bannon,  12  Pa.  Co.  Ct.  Rep.  399.  In  Beard  v.  Dalaney,  35 
Iowa,  16,  the  vendor  coneveyd  the  premises  with  general  warranty,  and  also 
executed  a  title  bond  conditioned  to  perfect  the  title  within  a  reasonable  time. 
This  was  not  done  and  a  judgment  was  recovered  on  the  bond.  The  point 
that  the  title  bond  was  merged  in  the  conveyance  was  not  raised.  The  court 
held  that  the  purchaser  could  not  recover  on  the  warranty  without  •howinj; 
an  eviction,  but  that  the  same  rule  did  not  apply  in  the  action  on  the  title 
bond.  A  bond  for  title  is  merged  in  a  conveyance  subsequently  given.  Shontz 
v.  Brown,  27  Pa.  St.  123.  A  special  covenant  in  a  title  bond  to  indemnify 
the  vendee  against  all  costs,  charges  and  damages,  if  the  land  recovered  from 
him  under  a  paramount  title,  is  not  merged  in  a  subsequent  conveyance  of 
the  land  with  warranty.  Cox  v.  Henry,  32  Pa.  St.  18. 

"In  Remington  v.  Palmer,  62  N.  Y.  31,  after  the  execution  of  the  deed,  but 
before  it  was  delivered,  a  question  arose  as  to  which  of  the  parties  should  pay 
an  assessment  on  the  premises.  The  vendor  having  agreed  to  pay  it,  the  pur- 
chaser accepted  a  conveyance.  Afterwards,  in  an  action  by  the  purchaser 


452  MARKETABLE    TITLE    TO    REAL    ESTATE. 

sarily  a  performance,  are  not  conclusively  presumed  to  have  been 
merged  in  the  conveyance.  Thus,  an  agreement  by  the  purchaser 
to  pay  off  an  existing  mortgage  on  the  premises  has  been  held  not 
to  have  been  merged  in  a  subsequent  conveyance  of  the  premises 
with  covenants  of  warranty.17  Also,  that  the  original  provisions  of 
the  contract  respecting  the  title,  are  not  merged  in  the  conveyance, 
unless  the  same  be  accepted  in  complete  execution  of  the  agree- 
ment.18 A  covenant  to  put  the  vendee  in  possession  is  not  merged 
in  a  subsequent  conveyance  with  warranty.19  And  a  contract  which 
expressly  provides  that  its  restrictions  and  stipulations  shall  be 
complied  with  and  carried  out  as  if  embodied  in  the  deed,  will  not 
be  held  to  have  been  merged  therein.20 

to  recover  the  amount  of  the  assessment  from  the  vendor,  the  latter  set  up 
the  defense  that  his  agreement  to  pay  the  assessmnt  was  merged  in  the 
conveyance  and  that  plaintiff  could  not  recover.  The  defense  was  adjudg-ed 
insufficient,  the  court  saying:  "It  is  said  that  all  agreements  preceding  the 
delivery  of  the  deed  were  merged  in  the  same.  This  position  is  not  a  sound 
one,  for  while  all  prior  agreements  may  be  merged  in  the  deed  when  exe- 
cuted it  by  no  means  follows,  that  before  the  contract  is  fulfilled  by  a  de- 
livery and  acceptance  of  the  deed,  that  conditions  may  not  be  made  which 
are  obligatory  upon  the  parties.  The  deed  being  ready  for  delivery,  and  the 
plaintiff  ready  to  pay  the  money,  they  had  a  perfect  right  to  exact,  as  a 
condition  of  fulfilling  the  contract,  that  the  defendant  should  pay  the  assess- 
ment when  it  became  due.  This  is  not  contradicting  a  written  agreement  by 
parol,  but  evidence  of  the  terms  upon  which  the  money  was  paid  and  the 
conveyance  delivered.  As  the  agreement  was  made  after  the  deed  was  exe- 
cuted and  before  delivery  there  could  be  no  merger  of  this  agreement  in  the 
deed."  Citing  Murdock  v.  Gilchrist,  52  N.  Y.  242. 

"  Reed  v.  Sycks,  27  Ohio  St.  285.  Disbrow  v.  Harris,  122  N.  Y.  365 ;  25  N. 
E.  Rep.  356.  Here  the  stipulation  was  that  a  small  portion  of  the  purchase 
money  should  be  kept  back  until  certain  repairs  to  the  premises  were  made 
by  the  grantor.  Citing  Morris  v.  Whitcher,  20  N.  Y.  41 ;  Whitbeck  v.  Waine, 
16  N.  Y.  532;  Bennett  v.  Abrams,  41  Barb.  (N.  Y.)  619;  Murdock  v.  Gil- 
christ, 52  N.  Y.  242.  Dillingham  v.  Estill,  3  Dana  (Ky.),  21. 

13  Cavanaugh  v.  Casselman,  88  Cal.  543;  26  Pac.  Rep.  515,  where  the  con- 
veyance embraced  only  a  part  of  the  purchased  premises.  In  Sessa  v.  Arthur, 
183  Mass.  230;  66  N.  E.  Rep.  804,  it  was  held  that  the  purchaser  did  not 
waive  an  express  provision  in  the  contract  of  sale  that  he  was  to  have  a 
warranty  deed  free  from  incumbrances,  by  accepting  a  deed  declaring  the 
premises  to  be  subject  to  the  incumbrance  of  a  certain  passage  way  between 
the  premises  and  an  adjoining  house,  and  retaining  the  deed  two  months 
without  objection  to  the  title. 

"German  Am.  Real  Est.  Co.  v.  Starke,  84  Hun  (N.  Y.),  430;  32  N.  Y. 
Supp.  403.  Williams  v.  Frybarger,  9  Ind.  App.  558. 

"Newbold  v.  Peabody  Heights  Co.,  70  Md.  499;  17  Atl.  Rep.  372. 


DETENTION  OF  PUBCHASE  MONEY BREACH  OF  COVENANT.       453 

It  has  been  held  that  an  executory  contract  for  the  exchange  of 
lands  is  not  merged  in  the  deeds  of  conveyance  executed  in  pursu- 
ance thereof,  and  that  if  one  of  the  parties  thereto  agreed  to  remove 
an  incumbrance  from  the  land  to  be  conveyed  by  him,  such  promise 
would  not  be  merged  in  the  conveyance  when  executed.21  And  the 
better  opinion  is  that  fraud  on  the  part  of  the  vendor  with  respect 
to  the  title,  is  not  merged  in  a  subsequent  conveyance  of  the  prem- 
ises with  warranty,  the  grantee  accepting  the  conveyance  in  igno- 
rance of  the  fraud.22 

§  18 2.  EFFECT  OF  PTTRCHASE  WITH  KNOWLEDGE  OF  DEFECT 
OB  INCUMBRANCE.  If  a  man  purchase  land  knowing  that  the 
title  is  bad  or  the  land  is  incurnbered,  that  fact,  as  has  been  seen, 
does  not  affect  his  right  to  recover  on  the  covenants  for  title  in  his 
deeds,  for  it  may  be  that  he  was  induced  to  purchase  because  of  the 
security  and  indemnity  from  loss  afforded  by  his  vendor's  cove- 
nants.23 But  whether  in  such  a  case  upon  a  breach  of  those  cove- 
nants he  will  be  suffered  to  detain  the  purchase  money  is  a  question 
upon  which  there  has  been  a  conflict  of  decision.  The  weight  of 
authority  and  the  better  opinion  seems  to  be  that  he  must  pay  the 
purchase  money  and  look  to  his  covenants  for  relief,24  except  in 

"Bennett  v.  Abrams,  41  Barb.   (N.  Y.)   619,  625. 

"Post,  §§  270,  276. 

*»  Ante,  §  124.     Wadhams  v.  Swan,  109  111.  46. 

**  Wailes  v.  Cooper,  24  Miss.  208 ;  Gartman  v.  Jones,  24  Miss.  234 ;  Stone 
v.  Buckner,  12  Sin.  &  M.  (Miss.)  73,  obiter.  Cummins  v.  Boyle,  1  J.  J.  Marsh. 
(Ky.)  480.  Stansbury  v.  Taggart,  3  McLean  (U.  S.),  457.  In  Perkins  v. 
Williams,  5  Coldw.  (Tenn.)  512,  it  was  held  that  the  rule  stated  in  the  text 
would  apply  even  though  the  vendor  was  insolvent.  In  Greenleaf  v.  Cook, 
2  Wh.  (U.  S. )  17,  the  court  said:  "Acquainted  with  the  extent  of  the  incum- 
brance and  its  probable  consequences,  the  defendant  consents  to  receive  the 
title  which  the  plaintiff  was  able  to  make,  and  in  receiving  it  executes  his 
note  for  the  purchase  money.  To  the  payment  of  a  note  given  under  such 
circumstances  the  existence  of  the  incumbrance  can  certainly  furnish  no  legal 
objection."  Per  MARSHALL,  Ch.  J.  In  Ryerson  v.  Willis,  8  Daly  (N.  Y.), 
462,  a  grantee  with  warranty  gave  a  mortgage  on  the  premises  for  a  balance 
of  the  purchase  money,  under  an  agreement  that  it  should  not  be  collected 
until  the  grantor  should  procure  and  deliver  to  him  a  quit  claim  of  a  certain 
interest  in  the  premises.  The  quit  claim  not  having  been  delivered  the 
grantee  brought  a  suit  to  cancel  the  mortgage,  but  the  court  held  that  he  was 
not  entitled  to  that  relief,  and  that  his  remedy  was  upon  the  covenants  in 
the  deed.  This  decision  was  rested  largely  upon  the  ground  that  the  grantee 
had  purchased  with  notice  of  the  defective  title. 


454  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

those  cases  in  which  the  vendor,  after  the  deed  had  been  executed, 
but  before  it  had  been  delivered  and  accepted  expressly  agreed  to 
remove  the  incumbrances.  Such  a  promise,  it  will  be  remembered, 
has  been  held  not  to  be  merged  in  the  subsequent  conveyance.18 
There  are  case  which  affirm  the  right  of  the  purchaser  to  detain 
the  purchase  money,  notwithstanding  his  acceptance  of  a  con- 
veyance with  notice  of  the  incumbrance,26  and  it  cannot  be  denied 
that  there  would  be  much  hardship  in  denying  him  that  right 
where  the  vendor  had  in  the  first  instance  agreed  to  extinguish  the 
incumbrance,  but  had  neglected  or  refused  to  do  it.27 

There  is  a  conflict  of  decision  upon  the  question  whether,  as 
between  vendor  and  purchaser,  the  latter  will  be  deemed  to  have 
notice  of  defects  and  incumbrances  which  appear  from  the  public 
records.  The  weight  of  authority  and  the  better  opinion  seems  to 
be  that  the  law  of  notice  from  the  public  registers  has  no  applica- 
tion as  between  vendor  and  purchaser.28 

§  183.  RECOUPMENT.  At  common  law,  a  total  failure  of  con- 
sideration could  always  be  pleaded  in  bar  to  an  action  on  a  con- 
tract, but  if  the  failure  of  the  consideration  was  only  partial,  the 
defendant  was,  as  a  general  rule,  driven  to  his  cross-action  against 
the  plaintiff.  A  total  failure  of  the  consideration  occurred 
wherever  the  defendant  received  absolutely  no  benefit  under  the 
contract ;  but  if  he  recived  any  such  benefit,  no  matter  how  small, 
the  plea  of  failure  of  consideration  could  not  be  sustained,  and  the 
defendant  was  forced  to  his  separate  action.29  If  the  contract  was 
for  the  sale  or  lease  of  lands,  there  could  be  no  total  failure  of  the 

"Remington  v.  Palmer,  62  N.-Y.  31.  Ante,  §  181. 

*•  Jaques  v.  Esler,  4  N.  J.  Eq.  461,  citing  Tourville  v.  Nash,  3  P.  Wms.  306. 
Johnson  v.  Gere,  2  Johns.  Ch.  (N.  Y.)  546.  Shannon  v.  Marselis,  Saxt.  (N. 
J.)  425;  Van  Waggoner  v.  McEwen,  1  Gr.  (2  N.  J.  Eq.)  412.  These  authori- 
ties, however,  go  but  little  further  than  the  general  proposition  that  knowl- 
edge of  the  defect  or  incumbrance  at  the  time  of  the  purchase  does  not  affect 
the  purchaser's  right  to  recover  on  the  covenants. 

27  In  Stelzer  v.  La  Rose,  79  Ind.  435,  it  was  held  that  a  purchaser  under  the 
circumstances  stated  in  the  text  could  not  detain  the  purchase  money  so  long 
as  he  had  suffered  no  loss  or  injury  on  account  of  the  incumbrance. 

M  Shannon  v.  Marselis,  Saxt.    (N.  J.)    413,  426.     Ante,   §   104. 

"Chitty  Cont.  (10th  Am.  ed.)  815.  An  exception  exists  in  the  case  of  a 
breach  of  warranty  of  chattels  where  the  defendant  returned  the  goods. 
Id.  491. 


DETENTION  OF  PURCHASE  MONEY BKEACH  OF  COVENANT.       455 

consideration  if  the  purchaser  was  put  in  possession30  and  enjoyed 
the  estate  without  liability  to  a  stranger  for  the  rents  and  profits,31 
in  case  the  title  was  not  such  as  he  might  demand,  e.  g.,  a  life  estate 
instead  of  an  estate  in  fee.  This  seems  to  have  been  the  rule,  even 
though  the  purchaser  was  evicted  by  the  real  owner.  But  now,  by 
virtue  of  statutes  in  many  of  the  American  States,32  the  defendant 

80  Moggridge  v.  Jones,  3  Camp.  38. 

M  Jenness  v.  Parker,  24  Me.  295. 

"Thus,  in  Virginia  (Code,  1887,  §  3299),  it  is  provided  that:  "In  any 
action  on  a  contract,  the  defendant  may  file  a  plea  alleging  any  such  failure 
in  the  consideration  of  the  contract,  or  fraud  in  its  procurement,  or  any  such 
breach  of  any  warranty  to  him  of  the  title,  or  the  soundness  of  personal 
property  for  the  price  or  value  whereof  he  entered  into  the  contract,  or  any 
other  matter  as  would  entitle  him  either  to  recover  damages  at  law  from  the 
plaintiff,  or  the  person  under  whom  the  plaintiff  claims,  or  to  relief  in  equity, 
in  whole  or  in  part,  against  the  obligation  of  the  contract;  or,  if  the  contract 
be  by  deed,  alleging  any  such  matter  arising  under  the  contract  existing 
before  its  execution,  or  any  such  mistake  therein,  or  in  the  execution  thereof, 
or  any  such  other  matter  as  would  entitle  him  to  such  relief  in  equiyt."  The 
object  of  this  statute  was  to  abelish  the  common-law  rule  that  the  defendant 
could  not  in  effect  have  at  law  a  rescission  of  a  contract,  the  benefits  of 
which  he  had  partly  enjoyed,  and  to  admit  of  the  defense  of  partial  failure 
of  consideration  by  way  of  set-off.  A  similar  statutory  provision,  it  is  be- 
lieved, exists  in  most  of  the  States.  In  Alabama,  the  early  rule  was  that 
unliquidated  damages  could  not  be  set  off  against  a  demand  for  the  purchase 
money.  Dunn  v.  White,  1  Ala.  645.  The  removal  of  an  outstanding  incum- 
brance  by  a  purchaser  of  land  having  a  covenant  against  incumbrances  was 
held  to  be  within  the  rule.  Cole  v.  Justice,  8  Ala.  793.  A  subsequent  statute 
authorized  the  set  off  of  not  only  mutual  debts,  but  liquidated  or  unliquidated 
demands  not  sounding  in  damages  merely.  Rev.  Code  Ala.  §  2642.  It  was 
held  that  the  amount  paid  by  a  purchaser  to  extinguish  an  outstanding 
vendor's  lien  was  within  this  statute,  and  should  be  allowed  as  a  set-off. 
Ilolley  v.  Younge,  27  Ala.  203.  So,  also,  a  breach  of  warranty  arising  from  a 
deficiency  in  the  quantity  of  land  sold.  Bell  v.  Thompson,  34  Ala.  633; 
Nelms  v.  Prewitt,  37  /la.  389.  So,  also,  a  cross-demand  growing  out  of  a 
defect  in  the  vendor's  title  is  available  as  a  set-off  in  an  action  on  the  notes 
for  the  purchase  money,  although  the  purchaser  is  in  possession.  Martin  v. 
Wlmrton,  38  Ala.  637.  In  Eads  v.  Murphy,  52  Ala.  525,  the  fact  that  the 
vendors  could  not  make  a  good  title  to  the  land  was  held  a  good  set-off  to  an 
action  for  the  purchase  money.  Under  a  statutory  provision  that  a  counter- 
claim must  be  one  "  existing  in  favor  of  a  defendant  and  against  a  plaintiff,  be- 
tween whom  several  judgments  might  be  had  in  the  action,"  a  sub-purchaser, 
against  whom  no  personal  judgment  is  asked,  cannot  defend,  by  way  of  coun- 
terclaim, an  action  to  foreclose  a  purchase-money  mortgage  on  the  ground 
that  he  had  been  evicted  by  paramount  title,  when  that  title  was  acquired 
through  a  sale  for  taxes  which  were  incumbrances  at  the  time  of  the  plain- 
tiff's grant.  In  other  words,  the  counterclaim  could  be  availed  of  only  by  the 
original  purchaser.  Nat.  Fire  Ins.  Co.  v.  McKay,  21  N.  Y.  191. 


456  MARKETABLE    TITLE    TO    REAL    ESTATE. 

in  any  action  on  a  contract  is  allowed  to  file  a  special  plea,  setting 
up  as  a  defense  any  matter  which  would  entitle  him  to  damages  at 
law  for  breach  of  the  contract,  or  to  relief  in  equity  against  the 
obligation  thereof.  In  some  of  the  States,  however,  no  such  statutes 
exist,  or,  at  least,  none  that  permit  the  defendant  to  set  up  a  claim 
for  unliquidated  damages  as  a  defense  to  an  action  on  a  contract. 
In  such  States,  the  defendant,  in  an  action  for  the  contract  price 
of  lands,  if  he  has  been  evicted  from  the  premises  and  has  a  pres- 
ent right  to  recover  damages  on  the  covenants  of  his  grantor,  is 
allowed  to  set  up  those  facts  in  recoupment  of  the  plaintiff's  de- 
mand, even  though  he  may  have  had  possession  of  the  premises,  and 
consequently  may  have  received  some  benefit  from  the  contract.33 
"  Recoupment  differs  from  set-off  in  this  respect ;  that  any  claim 
or  demand  the  defendant  may  have  against  the  plaintiff  may  be 
used  as  a  set-off,  while  it  is  not  a  subject  for  recoupment  unless  it 
grows  out  of  the  very  same  transaction  which  furnishes  the  plain- 
tiff's cause  of  action."34  The  defense  of  set-off  did  not  exist  at  com- 
mon law,  but  a  right  to  reduce  or  defeat  the  plaintiff's  demand  on 
account  of  some  matter  connected  therewith  was  conceded  to  the 
defendant.35  Thus,  in  an  action  for  work  done,  the  defendant 
might  deduct  from  the  damages  the  value  of  material  supplied  by 
him  f6  and,  in  an  action  to  recover  money  for  dyeing  goods,  the  de- 
fendant was  permitted  to  show  a  custom  which  allowed  him  to  de- 

33  In  Doremus  v.  Bond,  8  Blackf.  (Ind.)  368,  it  was  said:  "In  just  the 
amount,  then,  that  the  vendors  have  suffered  the  purchaser  to  pay  by  com- 
pulsion, to  secure  the  benefit  of  their  covenants  of  title  and  possession,  have 
those  covenants  failed  as  a  consideration;  and  that  failure  being  perfected 
before  the  payment  of  all  the  purchase  money,  it  may  be  recouped  out  of  the 
original  consideration.  The  defendant  is  not  bound  to  plead  the  matter  by 
way  of  set-off,  springing,  as  it  does,  out  of  the  default  of  the  vendors  in  rela- 
tion to  the  original  contract,  and  not  from  any  new  or  subsequent  dealing  on 
his  part."  In  Texas,  it  is  provided  by  statute  that,  if  "  a  suit  be  founded 
on  a  certain  demand,  the  defendant  shall  not  be  permitted  to  set  off  unliqui- 
dated damages  founded  on  a  tort  or  breach  of  covenant  on  the  part  of  the 
plaintiff."  Rev.  St.  Tex.  649.  Howard  v.  Randolph,  73  Tex.  454.  It  may  be 
doubted  whether  this  statute  would  exclude  the  defense  of  recoupment.  The 
statute  seems  to  be  directed  against  against  demands  disconnected  with  the 
contract. 

**  Black  Law  Diet.  nom.  Recoupment. 

"Chitty  Cont.   (10th  Am.  ed.)   946,  948. 

"•Newton  v.  Foster,  12  M.  &  W.  772. 


DETENTION  OF  PUECHASE  MONEY BREACH  OF  COVENANT.       457 

duct  from  the  price  of  the  work  the  amount  of  damage  done  to  the 
goods  while  being  dyed.37  The  extension  of  this  principle,  so  as  to 
allow  the  defendant  in  an  action  on  a  contract  to  set  up  as  a  de- 
fense unliquidated  damages  resulting  from  the  plaintiff's  non-per- 
formance of  the  contract,  has  produced  the  modern  doctrine  of  re- 
coupment.38 That  defense  is  permitted  for  the  purpose  of  avoiding 
circuitj  of  action ;  and,  after  all,  the  true  test  of  its  availability  is 
not  so  much  whether  there  has  or  has  not  been  a  mere  partial  fail- 
ure of  the  consideration,  as  whether  the  defendant  has  a  present 
right  to  recover  substantial  damages*from  the  plaintiff  for  breach 
of  covenant;  for,  if  he  have  such  right,  it  would  be  not  only  unjust 
but  contrary  to  public  policy  to  compel  him  to  pay  over  money 
which  he  could  immediately  recover  from  the  payee.39 

§  184.  BECOTTPMENT  TN  FOBECLOSTJBE  SUIT.  The  defense 
of  set-off,  recoupment  or  counterclaim  may  be  as  freely  made  in  an 
action  to  foreclose  a  purchase-money  mortgage  or  vendor's  lien  as 
elsewhere.40  But  if  no  personal  decree  or  judgment  against  the 
defendant,  in  case  of  a  deficiency,  is  sought,  the  defense  of  re- 
coupment for  damages  occasioned  by  a  failure  of  the  title  will,  as 

87  Bamford  v.  Harris,  1  Stark.  343. 

*•  In  Waterman  on  Set-Off  (2d  ed. ),  p.  575,  it  is  said:  "As  a  general  rule, 
after  the  purchase  has  been  carried  into  execution  by  the  delivery  of  the 
deed,  if  there  has  been  no  ingredient  of  fraud  and  the  purchaser  is  not 
evicted,  the  insufficiency  of  title  is  no  ground  for  relief  against  a  security 
given  for  the  unpaid  purchase  money."  This  is,  undoubtedly  the  general  rule. 
It  is,  also,  an  equally  well-established  rule  that  where  there  has  been  an  evic- 
tion to  which  the  covenants  of  the  grantee  extend,  he  may  recoup  the  damages 
thence  sustained  in  an  action  for  the  purchase  money.  Rawle  Covts.  for  Title 
(5th  ed. ),  §  326.  Consequently  the  reason  given  by  Mr.  Waterman  for  the  rule 
as  staged  by  him  is  somewhat  unsatisfactory.  He  says :  "  The  reason  is  that 
the  bond  and  mortgage  for  the  payment  of  the  purchase  money,  and  the  cove- 
nant of  warranty  from  the  grantor,  are  separate  and  independent  covenants 
and  the  breach  of  one  cannot  be  urged  as  a  defense  to  an  action  upon  the 
other."  Citing  Timms  v.  Shannon,  19  Md.  296;  81  Am.  Dec.  632;  Grant  v. 
Tallmans,  20  N.  Y.  191.  Such  a  reason  would  apply  as  well  where  there  was 
an  actual  eviction  as  where  the  possession  of  the  grantee  has  not  been  dis- 
turbed, and  would  be  subversive  of  the  rule  which,  to  prevent  a  circuity  of 
action,  permits  the  evicted  purchaser  to  retain  the  unpaid  purchase  money 
instead  of  turning  him  around  to  his  action  for  breach  of  covenant. 

"See  further,  Sawyer  v.  Wiswall,  9  Allen  (Mass.),  39;  Stacy  v.  Kemp,  97 
Mass.  166;  Carey  v.  Guillow,  105  Mass.  18;  7  Am.  Rep.  494. 

40 2  Jones  Mort.   (3d  ed.)    §§  1496,  et  seq. 


458  MARKETABLE    TITLE    TO    REAL    ESTATE. 

a  general  rule,  be  rejected,  for  the  reason  that  such  a  proceeeding 
is  essentially  in  rem;  that  the  vendor  is  only  seeking  to  reach  what 
he  had  sold,  and  that  it  is  immaterial  to  the  purchaser  whether  the 
title  in  such  a  case  be  good  or  bad.41  The  defense  of  set-off  or 
counterclaim  obviously  stands  on  different  grounds.42  But  if  the 

41  Jones  v.  Fulghum,  3  Tenn.  Ch.  19*3 ;  Cohen  v.  Woolard,  2  Tenn.  Ch.  686 ; 
Hurley  v.  Coleman,  3  Head  (Tenn.),  265,  which  was  a  suit  to  enforce  a  ven- 
dor's lien;  Curd  v.  Davis,  1  Heisk.  (Tenn.)  574.  Williams  v.  Sax  (Tenn.), 
43  S.  W.  Rep.  868.  See,  also,  post,  §  333.  Howie  Covts.  (5th  ed.)  §  351. 
Hubbard  v.  Chappel,  14  Ind.  601  *  Rogers  v.  Place,  29  Ind.  577;  Jackson  v. 
Fosbender,  45  Ind.  305.  McLeod  v.  Barnum,  131  Cal.  605;  63  Pac.  Rep.  924. 
In  Reed  v.  Tioga  Manfg.  Co.,  66  Ind.  27,  a  personal  judgment  was  sought 
against  the  defendant,  but  the  rule  stated  in  the  text  was  admitted.  Ludlow 
v.  Oilman,  18  Wis.  552.  Peters  v.  Bowman,  98  U.  S.  56.  Hulfish  v.  O'Brien, 
5  C.  E.  Green  (N.  J.),  230.  Kuhner  v.  Parker,  56  N.  J.  Eq.  286;  38  Atl. 
Rep.  641.  In  the  following  New  York  cases,  the  court  refused  to  stay  the  en- 
forcement of  purchase-money  mortgages  upon  the  mere  ground  that  the  title 
was  defective;  Platt  v.  Gilchrist,  3  Sandf.  Ch.  (N.  Y.)  118;  Griffith  v.  Kemp- 
shall,  1  Clarke  Ch.  (N.  Y.)  571;  Hoag  v.  Rathbun,  1  Clarke  Ch.  (N.  Y.)  12; 
Farnham  v.  Hotchkiss,  2  Keyes  (N.  Y.),  9;  York  v.  Allen,  30  N.  Y.  105; 
Parkinson  v.  Sherman,  74  N.  Y.  88;  30  Am.  Rep.  268;  Ryerson  v.  Willis,  81 
N.  Y.  277;  Gifford  v.  Society,  104  N.  Y.  139;  10  N.  E.  Rep.  39;  Soule  v. 
Dixon,  1  N.  Y.  Supp.  697.  Wright  v.  Phipps,  90  Fed.  556;  98  Fed.  1007. 
Beebe  v.  Swartwout,  3  Gilm.  (111.)  177,  where  it  was  said:  "It  will  be  ob- 
served that  S.  (the  vendor)  does  not  seek  to  collect  the  purchase  money  in 
this  case;  he  simply  asks  to  have  the  equity  of  redemption  foreclosed  if  the 
purchase  money  is  not  paid.  He  cannot  obtain  a  judgment  against  B.  (the 
purchaser)  and  pay  himself  out  of  the  general  property  of  B.  If  he  obtained 
any  money  at  all,  it  is  out  of  the  special  fund,  the  land,  upon  which  he  holds 
a  mortgage.  In  this  view  of  the  case,  the  failure  of  title  in  his  grantor  can 
hardly  affect  him.  His  equity  of  redemption  is  worthless  if  the  legal  title 
to  the  premises  fail."  It  is  true  that,  if  the  mortgagor  had  paid  a  part  of 
the  purchase  money,  he  would  have  an  equitable  interest  in  the  property  to 
that  extent;  but,  in  view  of  the  fact  that  he  could  only  obtain  relief  against 
a  demand  for  the  purchase  money  by  showing  a  clear  outstanding  title  in  a 
stranger  and  an  imminent  danger  of  eviction  from  the  premises,  and  that  he 
would  be  liable  over  to  the  real  owner  for  the  mesne  profits,  there  would  be 
little  to  gain  by  resisting  the  foreclosure  of  the  mortgage,  if  the  mortgagee 
does  not  seek  to  hold  him  liable  for  a  deficiency.  If  the  purchaser  had  given 
a  mortgage  on  other  property  to  secure  the  purchase  money,  a  different 
question  would  be  presented.  So,  also,  if  the  objection  to  the  foreclosure  is 
that  there  are  incumbrances  on  the  property  which  the  covenantor  is  bound 
to  remove. 

43  In  Hooper  v.  Armstrong,  69  Ala.  343,  it  was  held  that  a  suit  to  foreclose 
a  vendor's  equitable  lien  for  purchase  money,  was  not  a  proceeding  in  rem, 
but  a  proceeding  in  personam  in  which  the  defense  of  set-off  can  be  made. 
But  see  Parker  v.  Hart,  32  N.  J.  Eq.  225. 


DETENTION  OF  PUECHASE  MONEY BREACH  OF  COVENANT.      459 

Conveyance  under  which  the  defendant  held  contained  covenants 
for  title,  and  there  had  been  such  a  breach  of  them  as  to  give  him 
a  present  right  to  recover  damage?  against  the  plaintiff,  he  may 
avail  himself  of  that  defense  by  way  of  recoupment,43  even  though, 
it  would  seem,  no  personal  judgment  is  sought  against  him."  If 
there  be  a  prior  incumbrance  on  the  premises,  it  seems  to  be  gen- 
erally conceded  that  the  purchase  money  may  be  detained  until  the 
covenantor  removes  the  incumbrance,  or  reduces  it  to  a  sum  not 
exceeding  the  unpaid  purchase  money.45  If  the  incumbrance  is 
less  in  amount  than  the  balance  of  purchase  money  due,  and  the 
covenantee  chooses  himself  to  remove  it,  he  immediately  becomes 
entitled  to  substantial  damages  for  breach  of  the  covenant  against 
incumbrances,  and  may  avail  himself  of  that  defense  in  the  suit 
to  foreclose,  or  he  may  apply  the  purchase  money  to  the  discharge 
of  incumbrances,  as  far  as  it  will  go,  and  obtain  an  injunction 
until  the  residue  of  the  lien  is  removed  by  the  covenantor.46  An- 
other reason  why  a  mortgagor  or  vendee  in  possession  cannot  be 
allowed  to  set  up  an  outstanding  title  in  another  in  bar  of  a  bill 
to  foreclose  a  purchase-money  mortgage,  or  to  enforce  a  vendor's 

"2  Jones  Mort.  (3d  ed.)  §  1500,  and  cases  cited,  ante,  §  180.  Hoffman  v. 
Kirby,  136  Cal.  26;  68  Pac.  Rep.  321;  Williams  v.  Baker,  100  Mo.  App.  284; 
aff'd.  73  S.  W.  Rep.  339.  If  no  such  breach  of  the  covenants  for  title  had 
occurred,  the  defendant  would  have  no  ground  for  recoupment  and  would  not 
be  allowed  to  make  that  defense,  though  there  might  be  a  personal  decree 
against  him  for  a  deficiency.  Edwards  v.  Bodine,  26  Wend.  (N.  Y.)  109;  Leg- 
gett  v.  McCarty,  3  Edw.  (N.  Y.)  124. 

44  For  example,  if  the  defendant,  the  mortgagor,  had  been  compelled  to  buy 
in  adverse  claims  to  protect  his  title,  it  would  be  clearly  inequitable  to 
deprive  him  of  his 'right  to  recoup  the  damages  so  incurred,  merely  because 
the  plaintiff  asked  no  personal  judgment  against  him.  Therefore,  where,  in 
a  proceeding  in  equity  to  enforce  a  purchase-money  lien,  in  which  it  appeared 
tb,at, the  vendor  had  expended  moneys  in  getting  in  the  title  of  an  adverse 
claimant  of  part  of  the  land,  it  was  held  error  to  enter  a  decree  for  the 
plaintiff,  without  directing  a  reference  to  a  master  to  ascertain  whether  such 
adverse  title  was  paramount  or  not,  and  whether  the  purchaser  was  entitled 
to  an  abatement.  Smith  v.  Parsons,  33  W.  Va.  644;  11  S.  E.  Rep.  68. 

"Post,  §§  332,  335.  Buell  v.  Tate,  7  Bl.  (Ind.)  55.  Smith  v.  Fiting,  37 
Mich.  148,  semble.  Hughes  v.  McNider,  90  N.  C.  248.  McCrath  v.  Myers, 
126  Mich.  204;  85  N.  W.  Rep.  712. 

"Jones  Mort.  §  1504.  Whisler  v.  Hicks,  5  Bl.  (Ind.)  100;  33  Am.  Dec. 
454;  Smith  v.  Ackerman,  5  Bl.  (Ind.)  541;  Oldfield  v.  Stevenson,  1  Ind.  153; 
Smal1  v.  Reeves,  14  Ind.  164.  Potwin  v.  Blasher,  9  Wash.  460;  37  Pac.  Rep. 
710. 


460  MARKETABLE    TITLE    TO    BEAT.    ESTATE. 

lien  for  the  purchase  money,  is,  that  he  stands  in  the  relation  of  a 
tenant  to  the  vendor  and  is  estopped  to  deny  the  title  of  the  latter.*7 

There  are  cases  which  declare  that  in  a  suit  for  the  foreclosure  of 
a  mortgage  given  for  the  purchase  money,  the  mortgagor,  though 
personally  liable  for  the  debt,  cannot  set  up  want  of  title  in  the 
vendor  as  a  defense,  unless  he  has  been  evicted  from  the  possession. 
These  decisions  are  rested  precisely  upon  the  same  grounds  as  those 
which  deny  the  right  of  the  covenantee  to  detain  the  purchase 
money  unless  he  has  been  evicted,  and  would  seem  to  admit  of  the 
same  exceptions  where  the  vendor  is  insolvent  or  a  non-resident,  and 
suit  is  being  actually  prosecuted  or  threatened  by  an  adverse  claim- 
ant.4* If  the  purchaser  has  paid  a  part  of  the  purchase  money,  or 
has  expended  money  in  improving  the  premises,  so  as  to  entitle  him 
to  an  equitable  lien  thereon,  there  are  cases  which  hold  that  these 
facts  may  be  availed  of  by  him  in  a  suit  to  foreclose  the  mortgage.** 
If  the  grantee  has  been  evicted  from  a  part  of  the  premises,  he  may 
set  up  that  fact  as  a  defense  in  foreclosure  proceedings.  But  in 
such  a  suit  he  cannot  claim  an  abatement  of  the  purchase  money 
of  land  actually  sold  and  conveyed  to  him  on  account  of  the  failure 
of  title  to  other  land  which  was  not  in  fact  sold,  though,  it  was  in- 
advertently conveyed  to  him.50 

In  the  State  of  Virginia  the  enforcement  of  a  security  for  the 
purchase  money  by  a  sale  of  the  premises,  is  not  permitted  in  any 
case  in  which  the  title  is  in  doubt.  This,  however,  is  in  the  inter- 
est of  all  parties,  that  there  may  be  no  sacrifice  of  the  premises, 
and  that  a  doubtful  title  may  not  be  forced  upon  a  purchaser  at  the 
sale,51 

"Bigelow  on  Estoppel  (3d  ed.),  427,  citing,  among  other  cases,  Strong  v. 
Waddell,  56  Ala.  471,  and  Wallison  v.  Watkins,  3  Peters  (U.  C.),  43,  52.  In 
the  last  case  the  mortgage  does  not  appear  to  have  been  given  to  secure  pur- 
chase money. 

"Banks  v.  Walker,  2  Sandf.  Ch,  (X.  Y.)  344;  Davison  v.  De  Freest,  3 
Sandf.  Ch.  (N.  Y.)  456.  Falkner  v.  Hackett,  104  Wis.  608;  80  N  W.  Rep. 
940 ;  Nathans  v.  Steinmeyer,  57  S.  C.  386 ;  35  S.  E.  Rep.  733.  The  same  rule 
applies  in  a  suit  to  enforce  a  vendor's  lien.  Young  v.  Figg,  (Neb.)  100  N. 
W.  Rep.  311. 

•Rockwell  v.  Wells,  (Mich.)  62  N.  W.  Rep.  165.  Dayton  v.  Melick,  32  N. 
J.  Eq.  570.  De  Kay  v.  Bliss,  (X.  Y.)  34  N.  E.  Rep.  300.  Jones  Mortg.  (4th 
ed.)  1490. 

••  Elder  v.  First  Nat.  Bank,  91  Tex.  423 ;  44  S.  W.  Rep.  62. 

"Post,  $  337.  Peers  v.  Barnett,  12  Grat.  (Ya.)  415,  where  it  was  said  by 
the  court :  "  A  distinction  seems  to  have  been  taken  by  some  of  the  reported 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.       461 

§  185.  PAETIAL  FAILURE  OF  THE  CONSIDERATION.  The 
consideration  which  passes  from  the  grantor  to  the  grantee  upon  a 
conveyance  of  lands  with  unlimited  covenants  for  title  is,  according 
to  the  better  opinion,  not  the  mere  covenants  for  title  which  the 
conveyance  contains,  but  the  transfer  of  an  indefeasible  estate,  so 
that  if  the  purchaser  be  evicted  from  the  premises  by  one  claiming 
under  a  paramount  title,  there  is  a  clear  failure  of  the  considera- 
tion,52 though,  it  seems  according  to  common  law,  not  an  entire 
failure,  possession  once  had  under  the  contract  being  a  partial  en- 
joyment of  the  consideration  unless  the  grantee  was  liable  for  the 
rents  and  profits.  The  modern  doctrine,  however,  at  least,  so  far 
as  it  is  exemplified  by  the  American  decisions,  is  that  an  eviction 

cases  as  to  the  relief  a  court  of  equity  will  extend  to  a  vendee  who  has  ac- 
cepted his  deed  with  covenants  of  general  warranty,  where  he  seeks  to  enjoin 
a  judgment  for,  or  the  collection  of,  the  purchase  money,  and  the  case  where 
the  vendor,  instead  of  proceeding  against  the  vendee  personally,  is  attempt- 
ing to  sell  the  land  under  a  deed  of  trust  or  by  bill  in  equity;  that  although 
the  facts  may  not  authorize  the  court  to  enjoin  the  collection  of  the  purchase 
money  by  a  proceeding  against  the  vendee  at  law,  yet  as  a  court  of  equity 
reprobates  a  sale  of  land  when  clouds  are  hanging  over  the  title,  it  will,  for 
the  benefit  of  the  parties  and  the  security  of  the  purchaser  at  any  sale  of  the 
subject  enjoin  or  refuse  to  decree  a  sale  of  the  land  until  the  title  is  cleared 
up.  The  case  of  Beale  v.  Seively,  8  Leigh  (Va.),  658,  is  a  case  of  the  first 
class.  It  was  there  decided  that  where  a  vendee  is  in  possession  of  land  under 
a  conveyance  with  general  warranty,  and  the  title  has  not  been  questioned 
by  any  suit  prosecuted  or  threatened,  such  vendee  has  no  claim  to  relief  in 
equity  against  the  payment  of  the  purchase  money  unless  he  can  show  a 
defect  of  title  respecting  which  the  vendor  was  guilty  of  fraudulent  conceal- 
ment or  misrepresentation,  and  which  the  vendee  had  at  the  time  no  means 
of  discovering.  In  Ralston  v.  Miller,  3  Rand.  (Va.)  44;  15  Am.  Dec.  704; 
Roger  v.  Kane,  5  Leigh  (Va.),  606;  Clarke  v.  Hardgrove,  7  Grat.  (Va.)  399, 
this  court  has  extended  the  relief  to  cases  where  the  vendee,  placing  himself 
in  the  position  of  the  superior  claimant,  can  show  clearly  that  the  title  is 
defective.  The  principle  that  a  court  will  not  sell  or  permit  a  sale  of  land 
with  a  cloud  hanging  over  the  title,  is  affirmed  in  Lane  v.  Tidball,  Gilm. 
(Va.)  130;  Gay  v.  Hancock,  1  Rand.  (Va.)  72;  Miller  v.  Argyle,  5  Leigh 
(Va.),  460." 

"Rawle  Covt.  (5th  ed.)  §  327.  Cook  v.  Mix,  11  Conn.  432.  Knapp  v.  Lee, 
3  Pick.  (Mass.)  459;  Rice  v.  Goddard,  14  Pick.  (Mass.)  293;  Trask  v.  Vin- 
son,  20  Pick.  (Mass.)  110.  Tilotson  v.  Grapes,  4  N.  H.  448.  Deal  v.  Dodge, 
26  111.  458;  Tyler  v.  Young,  2  Scam.  (111.)  445;  35  Am.  Dec.  116;  Thomp- 
son v.  Shoemaker,  68  111.  256.  Dunning  v.  Leavitt,  85  N.  Y.  34 ;  39  Am.  Rep. 
617.  A  contrary  view  was  expressed  in  the  early  cases  of  Lloyd  v.  Jewell, 
1  Gr.  (Me.)  352;  10  Am.  Dec.  73,  and  Gridley  v.  Tucker,  1  Freem.  Ch. 
(Miss.)  211,  but  these  cases  are  overruled  by  or  are  inconsistent  with  the 
later  cases  cited  above. 


462  MABKETABLE    TITLE    TO    REAL    ESTATE. 

from  the  premises  by  an  adverse  claimant  produces  a  total  failure 
of  the  consideration.  One  of  the  principal  reasons  for  the  rule 
that  the  covenantee  cannot  detain  the  purchase  money  so  long  as  he 
is  in  possession  of  the  premises  is,  that  until  he  is  actually  or  con- 
structively evicted  there  is  only  a  partial  failure  of  the  considera- 
tion of  his  promise  to  pay.68  The  detention  of  the  purchase  money 
is  in  effect  a  species  of  rescission  of  the  contract,  and  there  can  be 
no  rescission  of  a  contract  while  either  party  is  in  the  enjoyment 
of  any  of  its  benefits.64  Hence,  it  follows  that  there  may  be  only  a 
partial  failure  of  the  consideration  in  a  case  in  which  the  title  has 
entirely  failed.55  Partial  failure  of  title  is  sometimes  spoken  of  in 
the  cases ;  apparently  in  the  sense  of  partial  failure  of  the  consider- 
ation;5* but  it  is  an  expression  likely  to  lead  to  confusion  of  ideas, 
for  strictly  speaking  there  is  no  such  thing  as  a  partial  failure  of 
title,  though,  of  course,  there  may  be  a  failure  of  title  to  part  of 
the  subject.  Accordingly  there  are  many  cases  in  which  the  right 
of  the  covenantee  to  resist  the  payment  of  the  purchase  money  while 
he  is  in  the  undisturbed  possession  of  the  premises  is  denied  upon 
the  ground  that  there  has  been  no  more  than  a  partial  failure  of 
the  consideration,  though  the/e  has  been  a  complete  and  palpable 
failure  of  the  title.67 

"  There  can  never  be  a  total  failure  of  the  consideration  of  a  conveyance 
with  covenant  of  warranty,  until  the  covenantee  has  been  actually  or  con- 
structively evicted.  Key  v.  Hansom,  17  Ark.  254;  McDaniel  v.  Grace,  15 
Ark.  487.  Contra,  Cook  v.  Mix,  11  Conn.  437. 

"Whitney  v.  Lewis,  21  Wend.  (N.  Y.)  131.  Patton  v.  England,  15  Ala. 
69;  Stark  v.  Hill,  6  Ala.  785. 

M  Thus,  it  has  been  held  that  if  the  estate  transferred  turn  out  to  be  a  life 
interest  instead  of  a  fee,  and  the  covenantee  be  put  in  possession,  there  is  no 
entire  failure  of  the  consideration  since  he  derives  some  benefit  from  the 
conveyance.  Bowley  v.  Holway,  124  Mass.  395.  Greenleaf  v.  Cook,  2  Wh. 
(U.  S.)  13. 

MAs  in  Bowley  v.  Holway,  124  Mass.  396. 

"2  Kent.  Com.  (12th  ed/)  473;  3  Sedg.  Dam.  (8th  ed.)  §  1083;  Waterman 
Set-Off  (2d  ed.),  §  560;  Eawle  Covts.  (5th  ed.)  §  330,  et  seq.  Moggridge  v. 
Jones,  3  Camp.  38;  14  East,  486.  Greenleaf  v.  Cook,  2  Wh.  (U.  S.)  13; 
Ecudder  v.  Andrews,  2  McL.  (U.  S.)  464,  and  analogous  cases  there  cited. 
Freeligh  v.  Platt,  5  Cow.  (N.  Y.)  494;  Whitney  v.  Lewis,  21  Wend.  (N.  Y.) 
131;  Tallmadge  v.  Wallis,  25  Wend.  (N.  Y.)  113;  Lamerson  v.  Marvin,  8 
Barb.  (N.  Y.)  11;  Farnham  v.  Hotchkiss,.2  Keyes  (N.  Y.),  9;  Tibbetts  v. 
Ayer,  Lai.  Supp.  (N.  Y.)  176;  Parkinson  v.  Sherman,  74  N.  Y.  88;  30  Am. 
Rep.  268;  Ryerson  v.  Willis,  81  N.  Y.  277.  Bowley  v.  Holway,  124  Mass. 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.       463 

In  other  case,  however,  the  doctrine  that  a  partial  failure  of  the 
consideration  cannot  be  availed  of  by  the  defendant  in  an  action  for 
the  purchase  money  of  land,  has  been  denied,58  and  in  a  few  cases 
a  total  failure  of  the  title  has  been  treated  as  a  total  failure  of  the 
consideration,  without  regard  to  the  question  of  eviction.69  There 
would  seem  to  be  no  occasion  to  invoke  the  doctrine  of  partial 
failure  of  the  consideration  in  behalf  of  the  plaintiff  so  long  as  the 
right  of  the  defendant  to  detain  the  purchase  money  may  be  satis- 
factorily denied  upon  another  ground,  namely,  that  until  the  cove- 
nantee  has  been  evicted  by  an  adverse  claimant  where  the  cove- 
nants are  of  warranty  of  for  quiet  enjoyment,  or  has  suffered  actual 
damages  from  an  incumbrance  on  the  premises,  where  the  covenant 
is  against  incumbrances,  there  can  be  no  right  to  recover  substan- 
tial damages  as  for  a  breach  of  those  covenants,  and,  consequently, 
nothing  to  recoup  from  the  plaintiff's  demand.  Where  there  has 
been  a  partial  failure  of  the  consideration,  in  the  sense  of  a  loss  of 
a  part  of  the  warranted  premises,  by  eviction  under  an  incum- 
brance or  a  paramount  title,  there  can  be  no  doubt  of  the  covenan- 
tee's  right,  according  to  the  rule  prevailing  in  America,  to  recoup 
the  damages  thus  sustained,  in  an  action  for  the  purchase  money.80 

395.  Glenn  v.  Thistle,  23  Miss.  42.  Leal  v.  Terbush,  52  Mich.  100;  17  N.  W. 
Rep.  713;  Hunt  v.  Middleworth,  44  Mich.  448.  Peden  v.  Moore,  1  Stew.  & 
P.  (Ala.)  71;  21  Am.  Dec.  649. 

In  Reese  v.  Gordon,  19  Cal.  149,  it  was  said:  "In  cases  of  fraud  or  war- 
ranty, or  where  the  consideration  is  divisible  or  capable  of  apportionment, 
a  partial  failure  may  sometimes  be  given  in  evidence  in  reduction  of  dam- 
ages; but  the  practice  in  this  respect  proceeds  upon  the  principle  of  a  cross- 
action,  and  an  affirmative  right  of  action  must  exist  in  favor  of  a  party  seek- 
ing relief  in  that  form."  The  "  partial  failure  "  here  mentioned  must  mean 
a  case  in  which  the  purchaser  has  been  evicted  from  part  of  the  premises; 
otherwise  the  two  propositions  contained  in  the  remarks  of  the  court  would 
be,  as  respects  the  covenant  of  warranty,  contradictory  and  inc  insistent;  for 
unless  the  purchaser  had  been  evicted  from  the  premises  in  whole  or  in  part 
there  could  be  no  "  affirmative  right  of  action  "  against  the  covenantor. 

"  Frisbie  v.  Hoff nagle,  1 1  Johns.  ( N.  Y. )  50.  James  v.  Lawrenceburg  Ins. 
Co.,  6  Bl.  (Ind.)  525.  Cook  v.  Mix,  11  Conn.  438;  Moon  v.  Ellsworth,  3 
Conn.  483.  Dahle  v.  Stakke,  12  N.  Dak.  325;  96  N.  W.  Rep.  353.  Black 
Hills  Nat.  Bank  v.  Kellogg,  45  Dak.  312;  56  N.  W.  Rep.  1071. 

••Frisbie  v.  Hoff  nagle,  11  Johns.  (N.  Y.)  50.    Cook  v.  Mix.  11  Conn.  438. 

*McHenry  v.  Yokum,  27  111.  160.  Dahle  v.  Stakke,  12  N.  Dak.  325;  96 
N.  W.  Rep.  353. 


464  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

In  New  York  a  partial  failure  of  the  consideration  of  an  agree- 
ment to  pay  the  purchase  money  for  lands  conveyed  with  covenants 
of  warranty  and  for  quiet  enjoyment  cannot  be  pleaded  in  bar,  but 
must  be  availed  of  by  way  of  recoupment  or  counterclaim,  with 
notice  that  such  defense  is  intended  to  be  made.61  But  if  the  con- 
sideration has  totally  failed,  that  is,  if  the  covenantee  has  been 
evicted  from  the  whole  premises,  that  fact  may  be  pleaded  in  bar  io 
an  action  for  the  purchase  money.62 

In  some  cases  it  has  been  held  that  damages  resulting  from  a  par- 
tial failure  of  the  consideration  cannot  be  recouped  in  an  action  for 
the  purchase  money,  upon  the  ground  that  the  doctrine  of  recoup- 
ment or  set-off  is  of  equitable  origin  and  cognizable  only  in  a  court 
of  equity.63  These  decisions  do  not  appear  to  have  been  followed 
in  the  other  States. 

§  186.  ASSUMPSIT  TO  TRY  TITLE.  An  objection  to  the  ad- 
mission of  the  defense  of  complete  failure  of  the  title  in  an  action 
for  the  purchase  money,  where  the  defendant  has  not  been  evicted, 
which  has  been  frequently  made,  is,  that  the  court  cannot  undertake 
in  such  an  action  to  try  the  title ;  in  other  words,  that  title  to  land 
cannot  be  tried  in  an  action  of  assumpsit.64  This  is  undoubtedly 
true  where  the  plaintiff  asserts  a  title  paramount  to  that  of  the 
defendant,  e.  g.,  where  he  seeks  to  recover  the  rents  and  profits  of 
the  land  enjoyed  by  the  defendant.65  But  this  doctrine,  in  its 
application  to  the  defense  of  failure  of  title  in  an  action  to  recover 
the  purchase  money  of  lands,  has  been  critised,  in  that  it  assumes 
an  eviction  of  the  defendant  to  be  conclusive  of  the  question  of  title, 
and  of  the  right  to  detain  the  purchase  money.66  It  is  familiar  law 

"Lewis  v.  McMillen,  41  Barb.  (N.  Y.)  420;  McCullough  v.  Cox,  6  Barb. 
(N.  Y.)  386;  Tibbetts  v.  Ayer,  Lai.  Supp.  (N.  Y.)  176. 

"Tallmadge  v.  Wallis,  25  Wend.  (N.  Y.)   116. 

"Wheat  v.  Dotson,  12  Ark.  699;  McDaniel  v.  Grace,  15  Ark.  487;  Key  v. 
Hanson,  17  Ark.  254. 

"Leal  v.  Terbush,  52  Mich.  100;  17  N.  W.  Rep.  713.  Dennis  v.  Heath,  11 
Sm.  &  M.  (Miss.)  206;  49  Am.  Dec.  51. 

"Marshall  v.  Hopkins,  15  East,  309;  Newsome  v.  Graham,  10  B.  &  C.  234. 
Baker  v.  Howell,  6  .S.  &  R.  (Pa.)  481.  Hogsett  v.  Ellis,  17  Mich.  351.  Cod- 
man  v.  Jenkins,  14  Mass.  93;  Boston  v.  Binney,  11  Pick.  (Mass.)  1. 

'•Rawle  Covts.  for  Title  (5th  ed.),  §  334,  n.,  where  the  author  says:  "It 
may  be  observed  that  the  objection  to  trying  the  title  to  land  in  an  action  for 
its  contract  price  must  equally  apply  in  every  case  where  the  paramount  title 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.       465 

that  the  defendant  must  show,  either  by  the  judgment  of  a  court  of 
record,  or  by  evidence  aliunde,  that  the  eviction  was  under  a  title 
paramount  to  that  of  the  covenantor.  Hence,  in  the  latter  case, 
the  court  must  necessarily  pass  upon  the  title  and  the  rights  of 
strangers  in  determining  the  sufficiency  of  the  defense ;  and  this  is 
constantly  done.  Besides  the  objection  in  question  would  apply 
as  well  where  the  contract  is  executory  as  where  it  has  been  exe- 
cuted by  a  conveyance  with  covenants  for  title,  and  if  it  were  in- 
superable, would  in  any  and  every  case  destroy  the  right  of  the 
purchaser  to  detain  the  purchase  money  upon  a  clear  failure  of  the 
title,  or  to  avail  himself  of  the  doctrine  of  marketable  title  in  an 
action  at  law,  unless  the  failure  of  the  title  had  been  established 
by  the  judgment  of  a  court  of  record. 

§  187.  WHAT  CONSTITTJTES  EVICTION  —  PTJBCHASB  OF  OUT- 
STANDING TITUS.  The  failure  of  title  to  real  estate  may  be  pal- 
pable and  complete,  as  where  the  vendor,  undertaking  to  convey  a 
fee  with  warranty,  had  only  a  term  for  years  which  had  expired, 
yet  until  the  grantee  has  been  actually  or  constructively  evicted  by 
an  adverse  claimant  under  color  of  title  there  is  no  breach  of  the 
covenants  of  warranty  or  for  quiet  enjoyment,  no  right  to  recover 
damages  against  the  covenantee,  and,  consequently,  no  right  to 
detain  the  unpaid  purchase  money.  What  constitutes  a  breach  of 

had  not  been  established  by  a  judgment  of  a  court  of  record.  Yet  to  give  to 
such  judgment  a  conclusive  effect  would  be,  when  the  vendor  had  not  been 
vouched  or  notified,  contrary  to  well-established  principle,  and  it  ia  appre- 
hended that  in  every  such  case  the  purchaser  would  be  bound  to  make  out 
the  adverse  title  under  which  he  had  been  evicted,  or  to  which  he  had 
yielded,  with  as  much  particularity  as  if  suing  on  the  covenants;  and  there 
would  seem  to  be  no  greater  objection  to  the  question  of  title  being  brought 
before  the  court  in  the  form  of  one  action  than  in  the  other."  See,  also, 
further  observation  at  p.  631,  n.,  same  volume.  In  Redding  v.  Lamb,  (Mich.) 
45  N.  W.  Rep.  997,  it  was  said  by  LONG,  J. :  "The  general  rule  is  that 
damages  for  breach  of  covenant  of  seisin  in  a  conveyance  of  land  are  only 
recoverable  in  an  action  for  breach  of  covenant,  as  titles  to  land  are  not 
properly  triable  in  actions  of  assumpsit ;  but  I  can  see  no  good  reason  for 
remitting  a  party  to  another  action  where  the  action  is  brought  to  recover 
the  purchase  price  of  the  land  sold  and  there  is  failure  of  title.  If  the  title 
has  failed  absolutely,  then  there  is  no  consideration  for  the  note,  and  the 
money  recovered  thereon  would  have  to  be  repaid  when  the  facts  were  estab- 
lished in  an  action  for  breach  of  covenant." 

30 


466  MABKETABLE    TITLE    TO    BEAL    ESTATE. 

those  covenants  has  been  already  considered,67  and  it  only  remains 
for  the  sake  of  convenience,  to  consider  here  briefly  the  application, 
of  the  principles  there  disucssed  to  the  defense  of  failure  of  title 
in  actions  to  recover  the  purchase  money.  Among  the  most  im- 
portant of  those  principles  is  that  which  allows  the  purchaser  to 
deduct  from  the  purchase  money  any  sum  that  it  may  have  been 
necessary  for  him  to  pay  to  adverse  claimants  in  order  to  protect 
his  title.  If  he  buys  in  an  adverse  title  to  prevent  eviction,  that  is 
held  the  equivalent  of  an  eviction,  as  respects  the  right  to  detain 
the  purchase  money.  He  cannot  be  turned  around  to  his  action  on 
the  covenant  for  indemnity.68  But  unless  the  rights  of  the  para- 
mount claimant  have  been  fixed  by  judgment  in  a  possessory  action, 
recovered  after  notice  to  the  covenantor,  so  as  to  make  the  judg- 
ments conclusive  upon  him,  the  covenantee  will  have  the  burden  of 
establishing  the  superiority  of  the  title  acquired  by  him  from  the 
adverse  claimant.69  If  there  has  been  no  eviction  or  disturbance 
of  the  covenantee  in  his  possession  of  the  estate,  and  it  does  not  ap- 
pear that  the  adverse  claimant  could  in  all  probability  have  re- 
covered the  land,  the  covenantee  will  not  be  reimbursed  for  the 
amount  paid  by  him  to  get  in  the  alleged  outstanding  title.70  The 
covenantee  cannot,  of  course,  claim  the  benefit  of  the  title  so  ac- 
quired, except  as  a  set-off  against  the  purchase  money  to  the  amount 
paid  by  him  to  the  adverse  claimant.  He  cannot  set  up  such  title 
adversely  to  that  of  his  grantor.71  Nor  can  he  escape  the  applica- 
tion of  this  rule  by  procuring  a  third  person  to  get  in  the  out- 
standing title.72  The  covenantee  may  also  surrender  the  possession 

"Ante,  §  142.  Dower  recovered  against  the  covenantee  constitutes  a  good 
defense  to  an  action  for  the  purchase  money.  McHenry  v.  Yokum,  27  111. 
160. 

"Rawle  Covts.  (5th  ed.)  §  334;  Dart  Vend.  (5th  ed.)  ch.  15,  §  7.  Ante, 
§  150.  Brandt  v.  Foster,  5  Iowa,  287.  Stelzer  v.  Rose,  79  Ind.  435.  Benson 
v.  Love,  58  Tex.  468. 

"Ante,  §    151. 

79 Ante,  §   151.     Blair  v.  Perry,  7  J.  J.  Marsh.   (Ky.)    152. 

"1  Sugd.  Vend.   (8th  ed.)    533    (355).     Post,  §  202. 

"Brodie  v.  Watkins,  31  Ark.  319;  34  Am.  Rep.  49,  where  it  was  said  that 
a  covenantee  who  procures  a  third  person  to  buy  in  the  premises  at  a  sale 
under  an  outstanding  incumbrance,  may  avail  himself  of  the  amount  so  paid 
out,  as  a  recoupment  in  an  action  for  the  purchase  money,  but  cannot  set 
up  the  title  BO  acquired  to  defeat  the  recovery  of  the  balance  of  the  purchase 
money. 


DETENTION  OF  PURCHASE  MONEY BKEACH  OF  COVENANT.       467 

to  a  paramount  claimant,  and  set  up  that  fact  as  a  defense  to  an 
action  for  the  purchase  money.  He  is  not  bound  to  await  an  actual 
eviction  by  the  real  owner.  But  he  will  have  the  burden  of  show- 
ing that  the  surrender  was  in  good  faith,  and  that  the  title  of  the 
adverse  claimant  was  one  to  which  he  must  have  inevitably 
yielded.78 

The  laws  of  the  United  States  forbid  the  sale  and  transfer  of 
mere  pre-emption  rights  to  public  lands,  and  make  the  land  so  sold 
liable  to  resale  in  the  hands  of  the  purchaser  as  public  lands.  Such 
a  resale,  it  has  been  frequently  held,  is  equivalent  to  an  eviction  for 
the  reason  that  it  carries  with  it  a  constructive  dispossession  of  the 
original  purchaser,  the  government  having  the  right  to  regain  the 
possession  by  a  summary  proceeding  without  suit.  Consequently, 
in  such  a  case,  the  covenantee,  holding  under  a  conveyance  from 
the  pre-emptor  with  covenant  of  warranty,  may  detain  the  purchase 
money  though  he  has  not  been  actually  evicted  from  the  premises.74 

At  one  time  it  was  held  that  a  covenantee,  seeking  to  detain  the 
purchase  money,  must  show  an  eviction  by  legal  process,  but  that 
doctrine  has  been  modified,  and  it  is  now  considered  that  an  evic- 
tion by  an  adverse  claimant,  under  color  of  title,  satisfies  the  rule. 
An  eviction,  whether  actual  or  constructive,  entitles  him  to  detain 
the  purchase  money.75  In  New  York  taxes  assessed  to  the  vendor 
but  laid  by  the  board  of  supervisors  after  the  purchaser  buys  and 
receives  a  conveyance,  must  be  paid  by  the  vendor.  In  other  words, 
the  person  owning  the  property  at  the  time  fixed  by  law  for  deter- 
mining who  shall  be  taxed  therefor  as  owner,  must  pay  the  tax.  If 
the  purchaser  be  compelled  to  pay  them  to  prevent  a  tax  sale,  the 
covenant  of  warranty  is  constructively  broken,  and  the  covenantee 
may  recover  the  amount  so  expended  as  damages,76  or  detain  the 
purchase  money  to  that  extent. 

n  Ante,  §  148.  Garvin  v.  Cohen,  13  Rich.  L.  S.  (S.  S.)  153.  Drew  v.  Towle, 
30  N.  H.  531;  27  N.  H.  412. 

M Glenn  v.  Thistle,  1  Cush.  (Miss.)  42.  The  following  cases  are  cited  to 
the  same  proposition  in  Rawle  Covt.  (5th  ed.)  p.  573:  McDaniel  v.  Grace,  15 
Ark.  489.  Fisher  v.  Salmon,  1  Cal.  413 ;  54  Am.  Dec.  297.  Slack  v.  McLagan, 
15  111.  242.  Dodd  v.  Toner,  3  Ind.  427.  Bradt  v.  Foster,  5  Clark  (Io.),  298. 
Hobein  v.  Drewell,  20  Mo.  450.  Tibbetts  v.  Ayer,  Hill  &  Den.  Supp.  (N.  Y.) 
174;  Blair  v.  Claxton,  4  N.  Y.  529,  but  few,  if  any  of  them,  will  be  found 
directly  in  point. 

"Ante,  §  145.     Rawle  Covts.  for  Title   (5th  ed.),  §  132. 

"Rundell  v.  Lakey,  40  N.  Y.  517.     See  ante,  §  150. 


468  MARKETABLE    TITLE    TO    REAL    ESTATE. 

We  have  seen  that  a  covenant  of  warranty  is  broken  only  by  an 
eviction,  actual  or  constructive.  Nevertheless  it  has  been  held  that 
the  covenantee  cannot  be  compelled  to  pay  the  purchase  money 
while  a  suit  against  him  by  an  adverse  claimant  to  recover  the 
premises  is  still  pending  and  undetermined.77 

It  sometimes  happens  that  the  covenantee  does  not  get  the  num- 
ber of  acres  called  for  by  his  deed.  It  seems  that  if  the  boundaries 
set  forth  in  the  deed  do  not  contain  the  number  of  acres  mentioned 
there  is  no  breach  of  the  covenant  of  warranty.  Consequently  the 
covenantee  cannot  at  law  detain  the  purchase  money.78  But  if  the 
boundaries  contain  the  full  number  of  acres  called  for,  and  there  be 
no  title  to  part  of  them,  and  the  covenantee  be  evicted  from  or 
unable  to  get  possession  of  that  part,  the  covenant  is  broken  and  he 
may  detain  the  purchase  money  to  that  extent.  If  the  boundaries 
set  forth  do  not  contain  the  specified  number  of  acres,  where  the 
sale  is  by  the  acre,  then  the  executed  contract  is  liable  to  rescission 
in  equity  on  the  ground  of  fraud  or  mistake.  It  has  been  held, 
however,  that  if  the  covenants  were  obviously  intended  to  secure  to 
the  purchaser  a  specific  number  of  acres  or  quantity  of  land,  he 
would  be  entitled  to  relief  upon  the  covenants  in  case  of  a  de- 
ficiency." 

"Jaques  r.  Esler,  3  Gr.  Ch.  (N.  J.)  465.     See,  post,  ch.  28. 

"2  Warvelle  Vend.  839;  Rawle  Covts.  (5th  ed.)  §  298.  Ante,  §  135. 
Young  y.  Lofton,  (Ky.)  12  S.  W.  Rep.  1061.  Carter  v.  Beck,  40  Ala.  599. 
Compare  Beach  v.  Waddell,  4  Halst.  Ch.  (N.  J.)  308.  In  Roger  v.  Kane, 
reported  in  note  to  Long  v.  Israel,  9  Leigh  (Va.)  569,  CABEL,  J.  (dissenting), 
held  that  the  covenantee  was  entitled  to  detain  the  purchase  money  if  any 
deficiency  in  the  quantity  of  the  land  existed,  whether  arising  from  the  fact 
that  the  boundaries  did  not  contain  the  stipulated  quantity  or  that  a  portion 
bf  the  land  so  contained  was  embraced  by  the  superior  title  of  others.  In 
Comegys  v.  Davidson,  154  Pa.  St.  534;  26  Atl.  Rep.  618,  where  the  contract 
had  been  executed  by  a  conveyance,  and  it  appeared  that  there  was  a  de- 
ficiency in  the  width  of  the  lot  conveyed,  the  court,  without  adverting  to  the 
presence  or  absence  of  covenants  for  title,  held  that  if  the  deficiency  in  th< 
property  conveyed  was  so  serious  that  it  might  be  regarded  as  evidence  ol 
imposition  or  fraud,  the  rule  was  to  allow  such  a  reduction  of  the  purchase 
money  as  will  compensate  the  purchaser  for  the  value  of  the  land  lost. 
Practically  this  is  administering  equitable  relief  in  an  action  for  the  pur- 
chase money.  In  Pennsylvania,  however,  there  is  no  separate  system  of 
equitable  procedure. 

"Leonard  v.  Austin,  2  How.    (Miss.)    888. 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.       469 

§  188.  DISCHARGE  OF  INCUMBRANCES.  If  the  purchaser  be 
compelled  to  pay  off  incumbrances  on  the  premises  he  becomes 
immediately  entitled  to  recover  substantial  damages  for  breach  of 
the  covenant  against  incumbrances,  and  may  recoup  the  damages  so 
incurred  in  an  action  for  the  purchase  money.80  If  the  deed  con- 

"Nesbit  v.  Campbell,  5  Neb.  429.  Davis  v.  Bean,  114  Mass.  358.  This  case 
is  said  by  Mr.  Sedgwick  to  be  inconsistent  with  Bowley  v.  Holway,  124  Mass. 
395,  where  it  was  held  that  in  an  action  for  the  purchase  money  failure  of 
title  could  not  be  set  up  as  a  defense  by  way  of  recoupment  if  there  had  been 
no  eviction,  for  then  there  would  be  only  a  partial  failure  of  the  consid- 
eration. The  two  cases  would  seem  distinguishable  in  this,  that  the  defense 
in  the  first  case  was  more  in  the  nature  of  set-off  than  recoupment,  for 
the  sum  paid  to  remove  the  incumbrance  could  scarcely  be  termed  un- 
liquidated damages.  And,  further,  in  this,  that  in  the  second  case  there 
had  been  no  breach  of  the  covenant  of  warranty,  while  in  the  first  case  the 
covenant  had  been  broken  and  actual  damages  incurred;  and  if  the 
incumbrance  had  equalled  the  purchase  money  in  amount  there  would  "have 
been  a  total  failure  of  the  consideration.  Where  the  incumbrance  discharged 
is  less  than  the  purchase  money  the  case  would  stand  upon  much  the  same 
ground  as  that  in  which  recoupment  is  allowed  when  the  covenantee  is 
evicted  from  a  part  only  of  the  premises,  namely,  that  to  that  extent  there 
is  a  complete  failure  of  the  consideration.  See  3  Sedg.  Dam.  (8th  ed.)  267, 
268.  Owens  v.  Salter,  38  Pa.  St.  211.  Kelly  v.  Low,  18  Me.  244.  Brooks  v. 
Moody,  20  Pick.  (Mass.)  475.  Baker  v.  Railsback,  4  Ind.  533;  Small  v. 
Rieves,  14  Ind.  163;  Holman  v.  Creagmiles,  14  Ind.  177.  Bowen  v.  Thrall, 
28  Vt.  382.  Delavergne  v.  Norris,  7  Johns.  (N.  Y.)  357;  5  Am.  Dec.  281. 
Schumann  v.  Knoebel,  27  111.  177,  the  court  saying:  "The  pleas  allege  the 
existence  of  a  certain  incumbrance  by  mortgage,  which  the  defendant  had  to 
pay  and  discharge,  and  thereby  extinguish  the  incumbrance.  To  the  extent 
then  of  this  incumbrance  there  was  a  failure  of  consideration.  Morgan  v. 
Smith,  11  111.  199.  Whisler  v.  Hicks,  5  Bl.  (Ind.)  100;  33  Am.  Dec.  454; 
Smith  v.  Acker,  5  Bl.  (Ind.)  541;  Buell  v.  Tate,  7  Bl.  (Ind.)  54;  Pomeroy 
v.  Burnett,  8  Bl.  (Ind.)  142.  We  think,  too,  the  defendant,  under  the  plead- 
ings, might  have  recouped  the  amount  thus  paid.  Babcock  v.  Tria,  18  111. 
420.  There  is  a  natural  equity  as  to  claims  arising  out  of  the  same  trans- 
action, that  one  claim  should  compensate  tjje  other,  and  that  the  balance 
only  should  be  recovered.  The  damages  claimed  by  the  defendant  grew  out 
of  the  contract  for  the  sale  of  the  land,  and  present  a  plain  case  for  recouping 
damages.  *  *  *  The  defendant  should  have  been  allowed,  either  under 
his  plea  of  partial  failure  of  consideration,  or  on  the  principle  of  recoupment 
under  the  other  pleas,  the  amount  he  paid  to  extinguish  the  mortgage  set  out 
in  his  plea,  and  the  plaintiff  should  have  had  a  judgment  for  the  balance 
only."  It  has  been  held  that  a  purchaser  of  mortgaged  premises  taking  a 
deed  subject  to  the  mortgage,  and  assuming  to  pay  the  mortgage,  is  estopped 
to  contest  the  consideration  and  validity  of  the  mortgage.  Parkinson  v. 
Sherman,  74  N.  Y.  92;  30  Am.  Dec.  268;  Ritter  v.  Phillips,  53  N.  Y.  586; 
Thorp  v.  Keokuk  Coal  Co.,  48  N.  Y.  253;  Freeman  v.  Auld  44  N.  Y.  50; 
Shadbolt  v.  Bassett,  1  Lans.  (N.  Y.)  121.  Dahle  v.  Stakke  12  N.  Dak.  325; 
96  N.  W.  Rep.  353. 


470  MARKETABLE    TITLE    TO    SEAL    ESTATE. 

tains  a  covenant  of  warranty,  but  no  covenant  against  incum- 
brances,  the  same  rule  applies  if  the  money  was  paid  to  prevent  an 
eviction  by  the  incumbrancer.  An  eviction  consequent  upon  the 
foreclosure  of  an  incumbrance  is  as  much  a  breach  of  the  covenant 
of  warranty  as  an  eviction  by  one  claiming  under  paramount  title.81 
The  mere  existence  of  an  incumbrance  upon  the  premises,  which  is 
a  breach  of  the  covenant  against  incumbrances,  is  no  ground  upon 
which  to  detain  the  purchase  money;  for,  if  the  covenantee  were 
to  sue  for  the  breach  he  could  recover  only  nominal  damages  so  long 
as  he  had  sustained  no  actual  damage  from  the  incumbrance.8* 
And  as  the  recoupment  of  the  breach,  when  sued  for  the  purchase 
money,  is  in  substance  a  cross-action  by  the  purchaser  on  the  cove- 
nant, it  devolves  on  him  to  show  that  he  has  discharged  the  incum- 
brance or  has  been  evicted  by  the  incumbrancer.83  Hence,  it  has 
been  held  that  the  mere  existence  of  a  right  of  dowor  in  the  prem- 
ises, whether  inchoate  or  consummate,  is  no  defense  to  an  action 
for  the  purchase  money  if  the  purchaser  holds  under  a  conveyance 
with  covenant  against  incumbrances,  and  has  not  been  evicted  by 
the  dowress,  nor  paid  her  a  sum  in  gross  in  commutation  of  her 
dower  right.84  An  apparent  exception  to  the  rule  above  exists  in 

"Ante,  §  150.  Coleman  v.  Insurance  Co.  26  Ky.  Law  Rep.  900;  82  S!  W. 
616.  In  Alden  v.  Parkhill,  18  Vt.  205,  it  was  held  that  a  purchaser,  taking 
a  deed  with  covenants  of  warranty,  could  not,  in  an  action  for  the  purchase 
money,  show  under  the  general  issue  a  breach  of  the  covenant  against  in- 
brances;  but  that  he  might  set-off  the  amount  paid  by  him  to  remove  the 
incumbrance  in  order  to  prevent  an  eviction. 

"Jones  Mortg.  §  500;  a  perspicuous  statement  of  the  rule  as  follows: 
"  Where  the  grantee  in  a  warranty  deed,  conveying  premises  OB  which  there 
is  a  prior  mortgage,  remains  in  the  undisturbed  possession  of  the  premises, 
and  the  mortgage  debt  is  unpaid  and  no  suit  has  been  brought  to  collect  it, 
or  foreclose  the  mortgage  or  to  evict  the  purchaser,  it  is  no  defense  to  a 
foreclosure  suit  against  him,  to  secure  the  purchase  money,  that  such  prior 
mortgage  is  an  outstanding  incumbrance,  unpaid  and  unsatisfied."  Mills 
v.  Saunders,  4  Xeb.  190.  Pomeroy  v.  Burnett,  8  Bl.  (Ind.)  142;  Mitchell 
v.  Dibble,  14  Ind.  526.  Martin  v.  Foreman,  18  Ark.  249,  where  it  was  held 
that  an  unsatisfied  judgment,  binding  the  warranted  premises,  constituted 
no  defense  to  an  action  for  the  purchase  money.  Gager  v.  Edwards,  26 
HI.  App.  490. 

"Thurgood  v.  Spring,  139  Cal.  596;  73  Pac.  456.  Bryan  v.  Swain,  56 
Cal.  618. 

"Whisler  v.  Hicks,  5  Blackf.  (Ind.)  100;  33  Am.  Dec.  454;  Smith  v.  Ack- 
erman,  5  Blackf.  (Ind.)  541. 


DETENTION  OF  PUBCHASE  MONEY BREACH  OF  COVENANT.   471 

those  cases  in  which  the  incumbrance  exceeds  the  purchase  money, 
and  the  grantee  is  allowed  a  temporary  injunction  until  the  vendor 
pays  the  excess.85  It  is  to  be  observed  that  the  right  to  detain  the 
purchase  money  is  either  to  detain  it  permanently  in  case  of  an 
actual  loss  of  the  entire  estate  by  reason  of  a  paramount  title  in  a 
stranger,  or  to  detain  it  temporarily  until  an  objection  to  the  title 
is  removed.  The  purchaser  may  retain  so  much  of  the  purchase 
money  as  may  be  sufficient  to  secure  him  against  pecuniary  incum- 
brances  on  the  land,  especially  when  the  grantor  is  insolvent,  and 
no  adequate  remedy  can  be  had  upon  his  covenants.86  If  a  cove- 
nantee  pays  off  an  incumbrance  on  the  land  he  can  have  credit  only 
for  the  actual  amount  disbursed  for  that  purpose.  He  cannot  buy 
up  the  lien  at  a  discount  and  have  the  benefit  of  its  face  value 
against  the  grantor.87  If  the  purchaser  accept  a  deed  from  a  third 
party  instead  of  the  vendor  he  cannot  recover  from  the  latter 
moneys  paid  in  removing  incumbrances.88 

The  purchaser  takes  the  risk  of  the  validity  of  the  incumbrance 
which  he  discharges.  The  vendor  may  always  show  that  he  was 
not  bound  to  discharge  the  incumbrance,  from  some  illegality  in  the 
consideration,  or  other  cause.89  If  the  purchase  money  be  secured 
by  trust  or  mortgage  which  the  vendor  is  proceeding  to  enforce, 
the  purchaser  can  have,  of  course,  no  means  of  availing  himself  of 
his  right  to  a  set-off  or  allowance  for  money  paid  in  removing 
incumbrances  which  should  have  been  discharged  by  the  vendor, 
except  by  way  of  injunction  to  prevent  the  sale.90  The  injunction 
would  be  denied,  it  is  apprehended,  unless  all  the  purchase  money 
had  been  paid,  except  so  much  as  may  have  been  applied  to  the 
incumbrance. 

As  the  duty  devolves  upon  the  covenantor  to  remove  incum- 
brances, the  covenantee  cannot  be  held  responsible  for  an  increase 
in  the  cost  and  charges  of  removal,  which  might  have  been  avoided 
by  prompt  action.  Thus,  where  a  tax  lien  might  have  been  re- 

"Post,  §§  332,  335. 

M  Bowen  v.  Thrall,  28  Vt.  382,  citing  Tourville  v.  Naish,  3  P.  Wms.  307. 
Warren  v.  Stoddart    (Idaho),  59  Pac.  Rep.  540. 
"McDowell  v.  Milroy,  69  111.  498.     Ante,  §  130. 
"Herryford  v.  Turner,  67  Mo.  296. 
"Norton  v.  Jackson,  5   Cal.  262. 
"Post,  §  332. 


472  MABKETABLE    TITLE    TO    REAL    ESTATE. 

moved  at  a  cost  of  $14  by  the  covenantee,  but  on  account  of  a  for- 
feiture to  the  State  for  non-payment  in  due  time,  he  was  compelled 
to  pay  $150  to  redeem  the  forfeiture,  it  was  held  that  he  was  en- 
titled to  set  off  the  amount  so  paid  against  the  unpaid  purchase* 
money.91 

§  189.  RULE  IN  TEXAS.  In  Texas  a  purchaser  who  has  ac- 
cepted a  Conveyance  with  general  warranty,  may  resist  the  payment 
of  the  purchase  money  in  case  of  a  failure  of  the  title,  though 
there  has  been  no  eviction,  but  he  is  required  to  show  that  such 
failure  consists  of  an  indisputable  superior  outstanding  title  under 
which  he  is  liable  to  be  evicted,92  and  that  he  accepted  the  convey- 

n  William  Farrel  etc.,  Co.  v.  Deshon,  65  Ark.  103;  44  S.  W.  Rep.  1036. 

m  Cooper  v.  Singleton,  19  Tex.  260 ;  70  Am.  Dec.  333 ;  Tarpley  v.  Poage,  2 
Tex.  139;  Woodward  v.  Rogers,  20  Tex.  176;  Cook  v.  Jackson,  20  Tex.  209; 
Johnson  v.  Long,  27  Tex.  21 ;  Demaret  v.  Bennett,  29  Tex.  263 ;  Johnston  v. 
Powell,  34  Tex.  528;  Fisher  v.  Dow,  72  Tex.  432;  10  S.  W.  Rep.  455;  Haralson 
v.  Langford,  66  Tex.  Ill;  18  S.  W.  Rep.  339;  Groesbeck  v.  Harris,  82  Tex. 
411  (1891);  19  S.  W.  Rep.  850;  Hubert  v.  Grady,  59  Tex.  502;  Blanks  v. 
Ripley,  (Tex.  Civ.  App.)  27  S.  W.  Rep.  732;  Doughty  v.  Cottraux,  (Tex. 
Civ  App.)  27  S.  W.  Rep.  914.  McLean  v.  Connerton  (Tex.  Civ.  App.)  78 
S.  W.  Rep.  238;  Wilson  v.  Moore  (Tex.  Civ.  App.)  85  S.  W.  Rep.  25.  He 
must  show  a  reasonable  certainty  of  eviction.  Price  v.  Blount,  41  Tex. 
472.  He  may  resist  the  payment  of  the  purchase  money  without  showing  a 
liability  to  eviction  where  fraud  was  us*d  to  induce  him  to  accept  the  title. 
Norris  v.  Evans,  60  Tex.  83.  The  Texas  doctrine  is  thus  stated  in  Cooper 
v.  Singleton,  19  Tex.  267;  70  Am.  Dec.  333,  the  leading  case  in  that  State: 
"  The  difference  between  the  liabilities  of  the  vendee  under  an  executory  and 
executed  contract  is  this:  That  in  the  former  he  should  be  relieved  by  show- 
ing defect  of  title,  unless  on  proof  by  the  vendor  that  this  was  known  at  the 
sale,  and  it  was  understood  that  such  title  should  be  taken  as  the  vendor 
could  give.  In  the  latter  the  vendee  should  establish,  beyond  doubt,  that  the 
title  was  a  failure  in  whole  or  in  part;  that  there  was  danger  of  eviction, 
and  also  such  circumstances  as  would  prima  facie  repel  the  presumption  that 
at  the  time  of  the  purchase  he  knew  and  intended  to  run  the  risk  of  the 
defect."  So  in  Demaret  v.  Bennett,  29  Tex.  268,  it  is  said:  "A  purchaser 
who  has  gone  into  possession  under  a  deed  with  warranty,  without  any  notice 
of  a  defect  in  the  title,  may  resist  the  payment  of  the  purchase  money 
by  showing  his  title  to  be  worthless,  and  the  existence  of  a  superior  outstand- 
ing title  by  actual  ouster,  or  what  is  tantamount  to  the  same,  as  indisputable 
superior  outstanding  title,  and  that  he  is  liable  to  be  evicted.  He  must  return 
the  possession  of  the  premises,  and  the  deed  for  cancellation.  In  Preston 
v.  Breedlove,  45  Tex.  47,  it  was  held  that  a  party  in  possession  claiming 
under  complete  and  recorded  conveyances,  could  not  be  affected  by  a  decree 
of  foreclosure  against  a  remote  vendor  alone,  and  that  a  sale  thereunder 
being  ineffectual  to  cut  off  his  defenses  against  the  lien,  he  could  not  set 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.       473 

ance  in  ignorance  of  the  defective  title.93  He  will  be  charged  with 
notice  of  defects  which  lay  in  the  vendor's  chain  of  title  unless  his 
attention  was  diverted  from  them  by  the  artifices  of  the  vendor.94 

up  such  sale  as  a  defense  to  an  action  against  him  for  the'  purchase  money, 
citing  Mills  v.  Traylor,  36  Tex.  7,  and  other  cases.  It  was  also  held  in  this 
case  that  the  fact  that  suit  had  been  brought  against  the  maker  of  a  note, 
secured  by  vendor's  lien,  to  recover  the  land,  was  not  sufficient  evidence  of 
failure  of  title  to  enable  him  to  detain  the  purchase  money. 

w  Brock  v.  Southwick,  10  Tex.  65;  Demaret  v.  Bennett,  29  Tex.  263;  Bryan 
v.  Johnson,  39  Tex.  31;  Price  v.  Blount,  41  Tex.  472;  Herron  v.'  De  Bard,  24 
Tex.  181;  May  v.  Ivie,  68  Tex.  379;  4  S.  W.  Rep.  641;  Twohig  v.  Brown,  85 
Tex.  51;  Fagan  v.  McWhirter,  71  Tex.  567;  9  S.  W.  Rep.  677.  Moore  v. 
Vogel  (Tex.  Civ  App.),  54  S.  W.  Rep.  1061;  Knight  v.  Coleman,  (Tex.  Civ. 
App.),  51  S.  W.  Rep.  258.  Upon  this  point  the  leading  case  is  Brock  v. 
Southwick,  10  Tex.  65.  It  is  there  said :  "  The  proof  shows  a  contract  of 
purchase  and  a  conveyance  subsequently  executed  with  warranty  of  title  and 
possession.  The  defendant  accepted  the  conveyance  with  a  knowledge  of  the 
defect  of  title.  He  was  put  upon  inquiry  and  was  informed  that  the  title 
was  defective.  He  nevertheless  made  the  purchase  and  accepted  the  convey- 
ance without  objection,  relying,  doubtless,  upon  his  chances  to  perfect  the 
title,  or  upon  the  security  afforded  by  the  covenants  in  his  deed  of  convey- 
ance. It  is  fair  to  conclude  that  he  considered  his  purchase  worth,  or  that 
he  was  willing  to  give,  the  stipulated  price  notwithstanding  the  defect  of 
title;  or  that  he  chose  to  take  the  chances  as  to  the  title,  and  have  his 
recourse  upon  the  covenants  in  his  deeds  in  case  of  eviction."  The  pur- 
chaser's pleadings  must  aver  such  want  of  notice.  Carson  v.  Kelly,  57  Tex. 
379.  So  in  the  recent  case  of  Neyland  v.  Neyland,  70  Tex.  24;  7  S.  W.  Rep. 
651.  The  purchaser  holding  under  a  deed  from  three  grantors  with  general 
warranty,  resisted  payment  on  the  ground  that  a  fourth  person  owning  an 
equal  interest  in  the  property  had  not  been  procured  to  execute  the  con- 
veyance as  agreed.  The  court  said :  "  The  plea  does  not  aver  a  want  of 
knowledge  of  defect  of  title  at  the  time  of  the  purchase,  nor  does  it  state 
when  the  defect  came  to  his  knowledge.  He  alleges  that  the  appellee  is 
insolvent,  but  does  not  allege  that  the  other  two  vendors  are  insolvent.  The 
curcumstances  recited  in  the  plea  indicate  that  he  was  aa  well  advised  of 
the  defect  in  the  title  and  the  insolvency  of  the  appellee  at  the  time  he 
purchased  as  he  was  at  the  time  he  executed  the  note.  He  admits  thai  he 
is  in  possession  of  the  land  under  a  deed  with  warranty.  He  does  not  allege 
that  there  were  fraudulent  representations  or  even  concealment  on  the  part 
of  his  vendors  at  the  time  he  purchased.  He  certainly  should  aver  that  he 
did  not  know  of  the  defect  at  the  time  of  his  purchase,  and  also  allege  the 
insolvency  of  all  of  his  vendors.  Being  in  possession  under  a  deed  with 
covenant  of  warranty,  appellant  cannot  be  released  from  payment  of  the 
purchase  money  unless  there  was  fraud  on  the  part  of  his  vendors  at  or 
before  the  sale,  or  in  case  of  defect  not  known  to  him  at  the  time  he  pur- 
chased." 

MHaralson  v.  Langford,  66  Tex.  113,  citing  Woodward  v.  Rogers,  20  Tex. 
176,  where,  however,  the  point  does  not  seem  to  have  been  distinctly  ruled. 


474  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

A  purchaser  availing  himself  of  this  defense  must  surrender  pos- 
session to  the  grantor  and  give  up  the  deed  to  be  cancelled,96  and  an 
answer  setting  up  such  a  defense  and  containing  no  offer  to  recon- 
vey  is  insufficient.96  But  he  may,  nevertheless,  surrender  the  pos- 
session to  an  adverse  claimant,  and  detain  the  purchase  money 
though  he  has  thereby  incapacitated  himself  from  placing  the  ven- 
dor in  statu  quo,  provided  he  can  show  absolutely  that  the  vendor 
had  no  title,  or  that  he  did  not  have  such  title  as  he  professed  to 
sell.97  He"  may  also  buy  up  the  rights  of  an  adverse  claimant  to 
prevent  inevitable  eviction,98  but  this,  however,  is  held  to  be  equiva- 
lent to  an  actual  eviction.99  It  may  be  observed  that  in  this  State, 
though  a  conveyance  has  been  executed  to  the  purchaser,  the  con- 
tract is  held  to  be  executory  so  long  as  the  purchase  money  remains 
unpaid.1 

If  the  purchaser  take  a  conveyance  without  covenants  for  title 
or  with  special  warranty  only,  the  rule  in  Texas  is  the  same  as  that 
which  generally  prevails  elsewhere,  namely,  that  in  the  absence  of 
fraud  he  is  without  relief  in  case  the  title  fails.2 

It  is  not  necessary  that  the  purchaser  should  make  the  holder  of 
an  outstanding  paramount  title  a  party  to  the  proceeding  in  order 
to  avail  himself  of  the  existence  of  such  title  as  a  defense  to  an 
action  for  the  purchase  money.3  But  it  is  not  a  sufficient  defense 
to  show  merely  that  at  one  time  the  title  was  outstanding  in  a 
stranger ;  he  must  show  also  that  such  title  has  never  been  acquired 
by  the  vendor.4  It  seems  that  in  this  State  the  existence  of  a  valid 
incumbrance  upon  the  premises,  is,  equally  with  failure  of  the 
title,  a  ground  for  detaining  the  purchase  money,  provided  the 

"Demaret  v.  Bennett,  29  Tex.  263;  Haralson  v.  Langford,  66  Tex.  Ill;  18 
S.  W.  Rep.  339;  Ogburn  v.  Whitlow,  80  Tex.  239;  15  S.  W.  Rep.  807,  citing 
Smith  v.  Nolan,  21  Tex.  497. 

96  Ogburn  v.  Whitlow,  80   Tex.  239;    15  S.  W.  Rep.  807. 

97  Fisher  v.  Dow,  72  Tex.  432;  10  S.  W.  Rep.  455. 
"•Clark  v.  Mumford,  62  Tex.  531. 

"Rawle  Covts.   (5th  ed.)    §   146. 

'Kennedy  v.  Embry,  72  Tex.  387;  10  S.  W.  Rep.  88;  Ogburn  v.  Whitlow, 
80  Tex.  241;  15  S.  W.  Rep.  807;  Lanier  v.  Forest,  81  Tex.  189;  16  S.  W.  Rep. 
994. 

a  Rhode  v.  Alley,  27  Tex.  445. 

•Fisher  v.  Abney,  69  Tex.  416;  9  S.  W.  Rep.  321. 

4 Haralson  v.  Langford,  66  Tex.  Ill;   18  S.  W.  Rep.  339. 


DETENTION  OF  PURCHASE  MONEY BREACH  OF  COVENANT.       475 

conveyance  with   warranty   was  accepted  without  notice  of  the 
incumbrance.5 

§  190.  BTTLE  IN  SOUTH  CAROLINA.  In  South  Carolina  a 
purchaser  who  has  taken  a  conveyance  with  general  warranty, 
which  in  that  State  embraces  the  five  common  law  covenants,8  may, 
for  any  defect  of  title  embraced  by  those  covenants,7  defend  an 
action  at  law  for  the  purchase  money,  though  there  has  been  no 
eviction,  if  he  can  show  that  the  defect  consists  of  an  outstanding 
paramount  title  to  which  he  must  inevitably  yield.8  But  he  can- 

•Tarlton  v.  Daily,  55  Tex.  92. 

•Evans  v.  McLucas,  12  S.  C.  56;  Lessly  v.  Bowie,  24  S.  C.  197;  3  S.  E. 
Rep.  199. 

T  Rogers  v.  Horn,  6  Rich.  Eq.  (S.  C.)  362;  Evans  v.  Denby,  2  Spears 
(S.  C.),  10;  13  Am.  Dec.  356. 

•Thompson  v.  McCord,  2  Bay  (S.  C.),  76;  Taylor  v.  Fulmore,  1  Rich. 
Eq.  (S.  C.)  52;  Sumter  v.  Welsh,  1  Brev.  (S.  C.)  539;  Johns  v.  Nixon,  2 
Brev.  (S.  C.)  472;  Van  Lew  v.  Parr,  2  Rich.  Eq.  (S.  C.)  340,  and  Rawle 
Covts.  569,  n.,  where  it  is  said:  "Since  Furman  v.  Elmore  (A.  D.  1819, 
reported  in  a  note  to  Mackey  v.  Collins,  2  Nott  &  McC.  189),  it  has  been 
the  settled  law  of  South  Carolina  that  a  covenant  of  warranty  possessed 
also  the  properties  of  a  covenant  for  seisin,  and  an  eviction  was  not,  there- 
fore, considered  necessary  to  its  breach.  Hence,  it  was  held  that  if  a  pur- 
chaser when  sued  for  the  purchase  price,  could  establish  to  the  satisfaction 
of  the  jury  that  he  took  nothing  by  his  purchase,  and  that  he  would  be 
ousted  by  the  paramount  title,  they  might  find  a  verdict  for  the  defendant, 
not  on  the  ground  that  the  failure  of  title  was  a  rescission  of  the  contract, 
but  because  the  damages  on  the  covenants  were  exactly  equal  to  the  purchase 
money  and  interest,  and  it  followed  that  where  a  portion  of  the  land  was 
so  covered  by  paramount  title  damages  could  be  assessed  pro  tcmto,  and  such 
is  the  law  at  the  present  day,"  citing  Farrow  v.  Mays,  1  Nott  &  McC.  312; 
Hunter  v.  Graham,  1  Hill,  370;  Van  Lew  v.  Parr,  2  Rich.  Eq.  337;  Jeter 
v.  Glenn,  9  Rich.  L.  378.  It  is  worth  while  to  consider  how  far  the  rule 
thus  stated  by  Mr.  Rawle  has  been  modified  by  more  recent  cases.  In  Lessly 
v.  Bowie,  27  S.  C.  193;  3  S.  E.  Rep.  199,  which  was  an  action  to  foreclose 
a  purchase-money  mortgage,  a  purchaser  with  general  warranty  resisted  the 
payment  of  the  purchase  money  on  the  ground  of  an  outstanding  paramount 
title  in  a  stranger.  Not  having  been  evicted  or  disturbed  in  the  possession 
it  was  held  that  he  was  not  entitled  to  relief.  The  court  after  observing: 
"  There  has  been  much  discussion  in  our  courts  as  to  whether  a  purchaser  of 
land  who  is  in  possession  under  general  warranty  may  defeat  an  action  for 
the  purchase  money  by  showing  paramount  outstanding  title  in  another 
before  he  has  been  actually  evicted,"  continued :  "  It  certainly  is  remarkable 
that  no  case  can  be  found  in  our  reports  in  which  damages  to  the  extent  of 
the  purchase  money  have  been  recovered  for  a  mere  technical  breach  of  the 
covenant  of  seisin  alone,  without  actual  damage  sustained,  or  eviction. 
Indeed,  the  distinguished  Chancellor  JOHNSTON,  in  delivering  the  judgment 
of  the  old  Court  of  Errors,  in  the  case  of  Van  Lew  v.  Parr,  2  Rich.  Eq. 


476  MARKETABLE    TITLE    TO    REAL    ESTATE. 

not,  in  such  a  case,  go  into  a  court  of  equity  and  obtain  a  rescission 
of  the  contract  so  long  as  he  remains  in  undisturbed  possession  of 
the  premises,  in  the  absence  of  fraud  or  insolvency  on  the  part  of 

(S.  C.)  340  (1846),  said:  'Arguments  were  drawn  by  counsel  from  a  very 
extensive  and  critical  examination  of  the  laws  and  decisions  of  this  State  to 
show  that  as  the  law  courts  in  certain  cases  allow  damages  upon  breach  of  the 
covenants  of  deeds  conveying  lands,  where  there  has  been  no  previous  eviction, 
equity  should  rescind  the  contract  where  the  remedy  at  law  is  incomplete. 
*  *  *  The  law  courts  seem  to  have  been  struggling  for  years  to  get  clear 
of  the  early  decisions  allowing  recoveries  on  the  ground  of  failure  of  title 
without  eviction,  and  they  appear  to  have  settled,  at  least  in  this  result, 
that  in  actions  brought  for  the  purchase  money,  the  purchaser  may  make  a 
clearly  subsisting  outstanding  title  the  ground  of  abatement  for  the  contract 
value  of  such  part  of  the  premises  as  it  may  cover.  It  has  been  proposed 
as  a  just  inference  from  this  that  where,  from  the  remoteness  or  contingency 
of  the  outstanding  title,  law  cannot  give  damages,  equity  should  interefere 
and  rescind  the  contract.  But  apart  from  the  incompetency  of  a  court  of 
equity  to  try  the  validity  of  the  outstanding  title,  is  it  not  obvious  that 
the  remoteness  and  contingency  which  renders  it  inapplicable  at  law.  must 
necessarily  make  it  equally  uncertain  what  degree  of  importance  should  be 
attached  to  it  as  a  ground  for  rescission  in  equity?  If  the  defect  of  title 
be  such  as  authorizes  a  court  of  law  to  interfere,  be  it  so.  That  is  one  of 
the  advantages  of  his  covenant  to  which  equity  leaves  the  purchaser.  But 
if  it  be  of  such  a  nature  that  law  declares  him  entitled  to  no  relief  in  virtue 
of  the  security  he  has  himself  selected,  as  was  the  case  in  this  instance,  it 
seems  a  strained  inference  that  the  declaration  entitles  him  to  relief  else- 
where. But  without  reopening  the  argument,  we  think  the  question  has  been 
finally  settled  by  the  more  recent  and  well-considered  cases,  which  concur  in 
holding  that,  while  a  purchaser  of  land  remains  in  quiet  possession  thereof 
he  cannot  sustain  a  bill  for  a  rescission  or  abatement  of  price  on  the  ground 
of  an  outstanding  title,  unless  on  the  score  of  fraud.' "  See,  also,  Childs 
V.  Alexander,  22  S.  C.  169  (1884);  Bethune  v.  McDonald,  35  S.  C.  88 
(1891);  14  S.  E.  Rep.  674;  Munro  v.  Long,  35  S.  C.  354  (1891); 
15  S.  E.  Rep.  553,  each  of  which  was  an  action  to  forclose  a  pur- 
chase-money mortgage.  In  Munro  v.  Long,  supra,  it  was  said :  "  It  will 
be  observed  that  this  is  not  a  case  for  the  enforcement  of  an  executory  con- 
tract of  sale,  but  it  is  an  action  for  the  purchase  money  of  the  property  sold, 
of  which  the  party  is  in  the  undisturbed,  and,  so  far  as  the  testimony  shows, 
the  unchallenged  possession."  In  Gray  v.  Handkisson,  1  Bay  (S.  C.),  278, 
it  was  held  that  the  purchaser  was  entitled  to  a  rescission  of  an  executed 
contract  in  case  of  an  outstanding  paramount  title,  though  he  had  been 
evicted,  but  this  case  and  those  which  follow  it  were  subsequently  disapproved 
in  Johnson  v.  Purvis,  1  Hill  (S.  C.),  326,  and  the  rule  established  that  the 
purchaser  was  entitled  to  an  abatement  of  the  purchase  money  to  the  extent 
of  the  outstanding  title,  but  not  to  a  rescission  of  the  contract.  See,  also, 
Van  Lew  v.  Parr,  2  Rich.  Eq.  (S.  C.)  337;  Westbrook  v.  McMillan,  1  Bailey 
(S.  C.),  259;  Bordeaux  v.  Carr,  1  Bailey  (S.  C.),  250;  Carter  v.  Carter,  1 
Bailey  (S.  C.),  217.  In  Poyas  v.  Wilkins,  12  Rich.  (S.  C.)  420,  it  appeared 
that  part  of  the  premises  purchased  was,  at  the  time  of  purchase,  in  poa- 


DETENTION  OF  PUECHASE  MONEY BREACH  OF  COVENANT.       477 

the  vendor.9  Judgment  liens  binding  the  warranted  premises  con- 
stitute no  ground  for  detaining  the  purchase  money,  unless  the 
purchaser  removed  them.10 

The  law  courts  in  this  State  adopt  the  civil  law  rule  of  implied 
warranty  in  the  sale  and  conveyance  of  lands.  Where,  however, 
the  sale  is  by  a  sheriff,  the  common-law  maxim  caveat  emptor 
applies,  and  the  purchaser  must  pay  the  purchase  money,  though 
the  title  completely  fails.  The  same  exception  will  extend,  it  is 
apprehended,  to  all  sales  made  in  a  representative  or  ministerial 
capacity.11 

§  191.  PLEADINGS.  The  defendant  in  an  action  for  the  pur- 
chase money  of  lands,  settting  up  a  breach  of  the  covenants  in  his 
deed  as  a  defense,  must  file  with  his  pleadings  the  original  or  a 
copy  of  that  deed,12  or  set  out  the  same,  or  the  essential  parts 
thereof,  in  the  pleadings.13  When  the  purchaser  seeks  to  detain 
the  purchase  money,  he  must  not  only  allege  a  failure  of  the  title, 
but  he  must  show  a  breach  of  covenant  or  fraud  on  the  part  of  the 
vendor.  A  mere  averment  that  the  title  has  failed  is  insufficient" 
If  the  purchaser  intends  to  rely  on  a  breach  of  the  covenants  for 
title  as  a  defense  to  an  action  for  the  purchase  money,  his  pleadings 
must  aver  the  existence  of  the  covenants.  Thus,  in  an  action  to 

session  of  a  third  person  claiming  under  a  prior  conveyance,  which  convey- 
ance did  not  in  fact  include  the  premises  in  dispute,  and  that  such  third 
person  had  acquired  title  thereto  by  adverse  possession,  without  fault  on 
the  part  of  the  vendor.  It  was  held  that  these  facts  constituted  no  defense 
to  an  action  for  the  purchase  money. 

•Whitworth  v.  Stuckey,  1  Rich.  Eq.  (S.  C.),  408,  the  leading  case,  citing 
and  approving  Bumpus  v.  Platner,  1  Johns.  Ch.  (N.  Y.)  213.  Van  Lew  v. 
Parr,  2  Rich.  Eq.  (S.  C.)  337;  Maner  v.  Washington,  3  Strobh.  Eq.  (S.  C.) 
171;  Kebler  v.  Cureton,  Rich.  Eq.  Cas.  (S.  C.)  143;  Gillam  v.  Briggs,  Rich. 
Eq.  CM.  (S.  C.)  143;  Evans  v.  McLucas,  12  S.  C.  56;  Lessly  v.  Bowie,  27  S.  C. 
193  (1887);  3  S.  E.  Rep.  199;  Childs  v.  Alexander,  22  S.  C.  169  (1884); 
Bethune  v.  McDonald,  35  S.  C.  88  (1891);  14  S.  E.  Rep.  674;  Munro  T. 
Long,  35  S.  C.  354  (1891)  ;  15  S.  E.  Rep.  553;  Means  v.  Bricknell,  2  Hill 
(S.  C.),  143;  Abercrombie  v.  Owings,  2  Rich.  L.  127. 

'•Gourdine  v.  Fludd,  Harp.  L.    (S.  C.)   232. 

"Davis  v.  Murray,  2  Const.  Rep.  (S.  C.)  143;  12  Am.  Dec.  661;  Herbe- 
mont  v.  Sharp,  2  McCord  L.  (S.  C.)  265. 

11  Starkey  v.  Neese,  30  Ind.  222 ;  Patton  v.  Camplin,  63  Ind.  512. 

uln  Howard  v.  Randolph,  73  Tex.  454;  11  S.  W.  Rep.  495,  failure  to  de- 
scribe the  instrument  containing  the  warranty  was  held  fatal. 

"Grantland  v.  Wight,  5  Munf.  (Va.)  295.  Moss  v.  Davidson,  1  Sm.  4  M, 
'(Miss.)  112.  Laughery  v.  McLean,  14  Ind.  106. 


478  MABKETABLE    TITLE    TO    REAL    ESTATE. 

foreclose  a  purchase  money  mortgage,  an  answer  that  the  defend- 
ant had  been  compelled  to  pay  off  liens  on  the  premises,  without 
showing  that  the  conveyance  to  him  contained  a  covenant  against 
incumbrances,  was  held  bad.  Inasmuch  as  his  plea  is  virtually  a 
cross-action  upon  the  warranty,  it  should  contain  the  same  aver- 
ments as  would  a  declaration  upon  the  covenant.15  The  purchaser 
may  avail  himself  of  a  defective  title  as  a  defense  to  an  action  for 
the  purchase  money,  without  averring  that  he  was  ignorant  of  the 
defects  at  the  time  of  the  sale.  It  is  for  the  plaintiff  to  reply  and 
prove  knowledge  of  the  condition  of  the  title  by  the  defendant.16 

§  192.  RESUME.  From  the  principles  discussed  in  the  fore- 
going pages  it  would  seem  to  follow,  that  if  the  covenantee  was 
never  able  to  get  possession  of  the  land,  the  possession  and  para- 
mount title  being  in  another,  there  would  be  a  total  failure  of  the 
consideration,  which  he  might  plead,  even  at  common  law,  as  an 
absolute  bar  to  an  action  for  the  purchase  money.  If,  on  the  other 
hand,  he  got  possession  and  was  afterwards  evicted  by  the  real 
owner,  he  would,  at  common  law  be  compelled  to  pay  the  purchase 
money  and  look  to  his  covenants  for  redress ;  while  in  the  Ameri- 
can States  he  would  be  permitted  to  recoup,  in  an  action  for  the 
purchase  money,  the  damages  sustained  from  the  plaintiff's  breach 
of  covenant;  or,  by  statute,  to  avail  himself  of  that  defense  by 
special  plea  in  the  nature  of  a  plea  of  set-off.  And,  lastly,  if  the 
defendant  was  in  possession  under  a  conveyance  with  covenants  of 
warranty,  for  quiet  enjoyment,  or  against  incumbrances,  and  there 
had  been  no  such  breach  of  those  covenants  as  to  give  him  a  present 
right  to  recover  substantial  damages  against  the  plaintiff,  the  ab- 
solute failure  of  the  title,  or  the  existence  of  an  incumbrance  on 
the  premises,  could  not  be  availed  of  as  a  defense  to  an  action  for 
the  purchase  money,  whether  by  way  of  recoupment,  statutory 
set-off,  counterclaim  or  otherwise. 

The  question  whether  a  grantee  may  detain  the  unpaid  purchase 
money  upon  a  breach  of  the  covenant  of  seisin,  on  condition  that  he 
surrender  the  premises  to  the  grantor,  is  discussed  in  a  subsequent 
part  of  this  work.17 

"Jenkinson  v.  Ewing,  17  Ind.  505.     Ante,  §  176. 

"Taul  v.  Bradford,  20  Tex.  264;  Hurt  v.  McReynolds,  20  Tex.  595. 

"Poet,  ch.  26. 


OF  AFFIRMANCE  OF  THE  CONTRACT  BY  PROCEEDINGS  IN  EQUITY. 

CHAPTER  XVII. 

SPECIFIC  PERFORMANCE  OF  EXECUTOR*  CONTRACTS  AT  THE  SUIT 
OF  THE  PURCHASER. 

IN  GENERAL.       §  193. 

PAYMENT  OF  THE  PURCHASE   MONEY  AS  CONDITION  PRECE- 

DENT.     §  194. 

LACHES  OF  PURCHASER.    §  195. 
DAMAGES   IN  EQUITY.     §   196. 


§  193.  N.I  GENIAL.  We  have  thus  far  considered  the  rem- 
edies of  the  purchaser  of  lands  in  affirmance  of  the  contract  by 
action  at  law  where  the  title  has  failed,  both  where  the  contract  is 
executory  and  where  it  has  been  executed  by  the  delivery  and 
acceptance  of  a  conveyance.  We  proceed  now  to  consider  the  rem- 
edies of  the  purchaser  in  affirmance  of  the  contract  by  proceedings 
in  equity,  and  such  rights  of  the  vendor  as  are  incidental  to  those 
remedies.  We  shall  consider  the  subject  under  the  general  head, 
"  Specific  performance  of  executory  contracts  at  the  suit  of  the 
purchaser  ;"  and  then  under  the  subdivisons,  "  The  right  of  the 
purchaser  to  take  the  title  with  compensation  for  defects;"1  and 
"  The  right  of  the  purchaser  to  perfect  the  title,  and  to  require 
ft  conveyance  from  the  vendor."2 

A  purchaser  of  a  defective  title  may,  where  the  contract  has 
been  executed  by  a  conveyance  with  covenants  for  title,  invoke  the 
aid  of  a  court  of  equity  to  compel  the  specific  performance  of  a 
covenant  for  further  assurance,  or  to  require  the  grantor  to  remove 
an  incumbrance  from  the  premises.8  If  the  contract  is  executory 
he  has  his  election  either  to  proceed  at  law  to  recover  damages 
for  a  breach  of  the  contract,  or  to  recover  back  the  purchase  money, 
or  to  proceed  in  equity  for  a  specific  performance  of  the  contract, 
with  compensation  for  defects.4  But  the  greater  number  of  suits 

1  Post,  ch.  18. 
•Post,  ch.  19. 

•Rawle  Covts.   (5th  ed.)   §§  104,  362;  Sugd.  Vend.   (14th  ed.)   613. 
4  2  Story  Eq.  Jur.   §   779;    Bispham's  Eq.    (3d  ed.)    §  380;   Fry  Sp.  Perf. 
(3d  Am.  ed.)   §  1174. 


480 

by  the  purchaser  for  the  specific  performance  of  the  contract  are 
instances  in  which  the  vendor,  having  a  perfect  title,  wrongfully 
and  wilfully  refuses  to  convey.  If  the  vendor  has  no  title  or  a 
bad  title,  the  court  will  not,  as  we  shall  presently  see,  compel  him 
to  execute  a  conveyance.  Hence,  it  will  be  found  that  the  pro- 
ceedings of  the  purchaser  in  equity  in  affirmance  of  the  contract, 
where  the  title  is  defective,  consist  chiefly  of  cases  in  which  he 
insists  upon  the  right  to  apply  the  purchase  money  to  the  dis- 
charge of  incumbrances  upon  the  estate,  or  to  the  removal  of  objec- 
tions to  the  title,  or  where  he  himself  has  so  applied  the  purchase 
money  and  seeks  the-  sanction  of  a  court  of  equity ;  or  where  he 
asks  that  the  vendor  be  compelled  to  discharge  an  incumbrance 
on  the  premises,  or  to  procure  a  release  from  some  one  claiming 
an  interest  therein.5 

A  court  of  equity  will  not  compel  the  vendor  to  execute  a  con- 
veyance of  the  premises  if  he  have  no  title,  and  cannot  obtain  it 
by  ordinary  process  of  law  or  equity,  for  that  would  be  a  vain  and 
useless  act.6  Neither  will  specific  performance  be  decreed  if  the 
equitable  title  is  in  a  stranger,  of  whose  rights  the  complainant 
had  notice  when  he  entered  into  the  contract.7  He  cannot  be 

'In  Gotthelf  v.  Stranahan,  138  N.  Y.  345;  24  N.  E.  Rep.  286,  it  was  held 
that  an  agreement  to  convey  free  from  all  incumbrances  by  warranty  deed, 
did  not  require  the  vendor  to  satisfy  assessments  for  "  contemplated  improve- 
ments," which  the  city  might  abandon,  but  that  he  must  remove  an  assess- 
ment made  between  the  date  of  the  contract  and  the  time  fixed  for  the 
conveyance,  for  a  local  improvement  made  before  the  contract  was  entered 
into.  If  the  vendor  agree  to  pay  all  taxes  accruing  before  completion  of. 
the  contract,  and  fail  so  to  do,  the  purchaser  may  maintain  an  action  for 
specific  performance,  and  is  not  confined  to  an  action  at  law  on  the  agree- 
ment. Stone  v.  Lord,  80  N.  Y.  60. 

•1  Sugd.  Vend.  (8th  Am.  ed.)  329  (217)  ;  Adams  Eq.  m.  p.  81.  Crop  v. 
Noston,  2  Atk.  74;  Cornwall  v.  Williams,  Col.  P.  C.  390;  Bennet  Col.  v. 
Cary,  3  Bro.  C.  C.  390;  Te'ndring  v.  London,  2  Eq.  Cas.  Abr.  680;  Bryan  v. 
Lewis,  1  Moo.  &  Ray,  386.  Snell  v.  Mitchell,  65  Me.  48 ;  Smith  v.  Kelly,  56 
Me.  64.  Hurley  v.  Brown,  98  Mass.  547.  Pack  v.  Gaither,  73  N.  C.  95. 
Chartier  v.  Marshall,  51  N.  H.  400.  Jordan  v  Deaton,  23  Ark.  704.  Gaither 
v.  O'Doherty,  (Ky.)  12  S.  W.  Rep.  306.  Ormsby  v.  Graham,  123  Iowa  202; 
98  N.  W.  Rep.  724. 

7  Franz  v.  Orton,  75  111.  100.  A  purchaser  who  has  agreed  to  be  ''at  one- 
half  the  expense  of  procuring  a  title"  cannot  demand  specific  performance 
until  he  has  paid  his  part  of  the  expense  of  procuring  title.  Hutchinson 
v.  McNutt,  1  Ohio,  14. 


SPECIFIC  PERFORMANCE  OF  EXECUTOBY  CONTBACTS.          481 

placed  in  a  better  position  than  his  vendor.  On  the  contrary,  if 
he  took  a  conveyance  with  actual  notice  that  the  equitable  title 
was  in  a  stranger,  he  would  himself  be  compelled  to  convey  to  him, 
for  in  such  a  case  he  would  be  regarded  as  a  mere  trustee  of  the 
legal  title.8 

The  general  rule  is  that  specific  performance  cannot  be  decreed 
against  the  vendor  if  he  has  parted  with  the  legal  title.9  But 
if  the  vendor  disable  himself  from  performing  the  contract  by 
conveying  the  premises  to  a  third  person,  who  has  notice  of  the 
purchaser's  equities,  the  latter  may  maintain  a  bill  for  specific 
performance  against  his  vendor  and  the  subsequent  purchaser.  A 
second  purchaser,  with  notice,  takes  subject  to  the  first  purchaser's 
rights,  and  may  be  compelled  to  perform  the  original  contract." 
The  vendor  cannot  defend  a  suit  for  specific  performance  on  the 
ground  that  he  has  only  the  equitable  title;  it  is  his  business  to 
obtain  the  concurrence  of  the  person  having  the  legal  title.11  But 
it  is  error  for  the  court  to  decree  that  the  defendant  convey  within 
a.  certain  time  when  the  bill  shows  that  he  has  not  the  legal  title.12 

If  the  title  of  the  vendor  be  equitable  only,  the  purchaser  will 
stand  in  the  vendor's  shoes  and  be  entitled  to  all  of  his  remedies 

»1  Sugd.  Vend.  (8th  Am.  cd.)  352;  2  Story  Eq.  Jur.  (13th  ed.)  §  783. 
Fewster  r.  Turner,  6  Jur.  144.  Champion  v.  Brown,  6  Johns.  Ch.  (N.  Y.) 
402;  10  Am.  Dec.  343.  Stone  v.  Buckner,  12  Sm.  &  M.  (Miss.)  73.  Hunter 
r.  Bales,  24  Ind.  299.  See,  also,  Jacques  v.  Vigo  County,  2  Blackf.  (Ind.) 
4M.  Of  course  one  who  acquires  the  legal  title  without  notice  of  the  equi 
table  rights  of  a  prior  purchaser  cannot  be  required  to  convey  to  such  pur- 
chaser. Cunningham  v.  Depew,  Morris  ( Iowa ) ,  463. 

•Davenport  v.  Latimer,  53  S.  C.  563;   31  S.  E.  630. 

"Story  Eq.  Jur.  §§  395,  396.  Estell  v.  Cole,  52  Tex.  170;  Austin  T.  Ewell, 
«S  Tex.  Supp.  407.  White  v.  Mooers,  86  Me.  62;  29  Atl.  Rep.  936.  Bates  r. 
Swiger,  (W.  Va.)  21  S.  E.  Rep.  874.  Meyers  v.  Markham,  90  Minn.  230; 
96  N.  W.  Rep.  787. 

But  in  a  case  in  which  the  purchaser  had  rejected  the  title  as  unmarket- 
able by  reason  of  liens  on  the  property,  it  was  held  that  he  could  not,  after 
waiting  a  year  or  more,  and  after  a  number  of  the  liens  had  been  satisfied, 
maintain  a  bill  for  specific  performance  against  the  vendor  and  one  to  whom 
the  vendor  had  sold  the  property  in  good  faith,  though  the  second  purchaser 
had  notice  of  the  prior  contract.  Oliver  Mining  Co.  v.  Clark,  65  Minn.  277; 
68  N.  W.  Rep.  23. 

11 1  Sugd.  Vend.  (8th  Am.  ed.)  332,  525,  citing  Crop  v.  Norton,  2  Atk.  74; 
Costigan  v.  Hastier,  2  Sch.  &  Lef.  160. 

M  Compton  v.  Nuttle,  2  Ind.  416. 
31 


482  MARKETABLE    TITLE    TO    EZAL    ESTATE. 

and  may  maintain  a  suit  for  specific  performance  against  his 
vendor  and  the  original  vendor." 

If  the  purchaser  sues  the  vendor  for  specific  performance,  it  is 
a  good  defense  by  the  latter  that  he  has  not  and  cannot  procure 
the  title.14  If  it  be  practicable,  however,  for  him  to  procure  the 
title1*  upon  fair  terms,"  it  seems  that  he  will  be  required  so  to 
do,  unless,  it  is  presumed,  the  amount  necessary  to  be  expended 
for  that  purpose  should  exceed  the  purchase  money.  "  In  equity  " 
an  answer  by  the  vendor  that  he  cannot  make  title  "  will  not 
suffice,  otherwise  a  seller  who  had  altered  his  mind  might  very 
easily  get  rid  of  the  contract;  but  the  courts  of  equity  say  he 
shall  answer  on  oath,  first  to  a  bill  filed  against  him,  then  on 
examination  before  a  master  whether  a  title  cannot  be  made.  The 
courts  often  make  a  way  to  obviate  apparent  difficulties  and  com- 
pel the  seller  to  procure  conveyances  in  order  to  complete  his  title, 
and  the  seller's  declaration  that  he  rescinds  the  contract  will  not 
at  all  defeat  the  purchaser's  right."17  A  provision  in  the  contract 
that  if  the  vendor  cannot  deduce  a  good  title,  or  the  purchaser 
shall  not  pay  the  money  on  the  appointed  day,  will  not  entitle 
the  vendor  to  rescind  if  the  purchaser  makes  objections  to  the 
title."  It  has  been  held  that  if  the  vendor  have  not  title  the  pur- 
chaser is,  nevertheless,  in  his  suit  for  specific  performance,  en- 
titled to  a  decree  that  the  vendor  make  a  reasonable  effort  to 
acquire  the  title  and  perform  his  contract.15  It  was  not  indicated 
in  this  case  how  such  a  decree  could  be  enforced. 

The  fact  that  the  purchaser  files  a  bill  for  specific  performance 
when  he  knows  that  a  good  title  cannot  be  made,  is  no  ground 
upon  which  to  compel  him  to  take  such  title  as  can  be  made.10  He 

"1  Sugd.  Vend.  (8th  Am.  ed.)  571  (381).    Schreck  v.  Pierce,  3  Iowa,  350. 

"Swepson  v.  Johnson,  84  N.  C.  449.  Williams  v.  Mansell,  19  Fla.  546. 
Ormsby  v.  Graham,  123  Iowa  202;  98  N.  W.  Rep.  724. 

"Love  v.  Camp,  6  Ired.  Eq.   (N.  C.)   209;   51   Am.  Dee.  419. 

"  Love  v.  Cobb,  63  N.  C.  324. 

"  Roberts  v.  Wyatt,  2  Taunt.  268. 

**  Language  of  MAXSFTELD.  C.  J.,  in  Roberts  v.  Wyatt,  supra. 

» Wellborn  v.  Sechrist,  88  N.  C.  287.  In  this  case  the  vendor  had  disabled 
kimself  from  performing  the  contract  by  conveying  to  a  stranger. 

»1  Sugd.  Vend.  (8th  Am.  ed.)  528.     Stapylton  v.  Scott,  16  Vea.  272. 


SPECIFIC  PERFORMANCE  OF  EXECUTORY  CONTRACTS.          483 

must,  however,  submit  to  the  alternative  of  taking  that  title  or 
having  his  bill  dismissed.21 

But  while  specific  performance  cannot  be  decreed  against  a 
vendor  who  has  no  title,  it  is  no  objection  that  he  had  no  title 
when  the  contract  was  made,  if  he  has  since  acquired  it.  The 
purchaser's  equity  is  complete  if  the  vendor  have  title  at  the  time 
of  the  decree.22  It  has  been  held,  however,  that  if  the  vendor 
agree  to  convey  by  quit  claim,  the  agreement  has  reference  only 
to  such  title  as  he  may  then  have,  and  not  to  a  title  thereafter 
acquired,  and  that  he  cannot  be  compelled  to  convey  such  after- 
acquired  title  to  the  purchaser.23 

The  purchaser  may,  of  course,  file  his  bill  requiring  the  vendor 
to  remove  an  incumbrance  from  the  premises,  unless  the  purchase 
was  made  subject  to  incumbrances.24  But  the  court  cannot  enter 
a  decree  requiring  the  vendor  to  remove  an  incumbrance  which  he 
has  not  a  legal  right  to  discharge.25  Nor  can  the  vendor  be  re- 
quired to  remove  incumbrances  or  cure  defects  in  the  title  where 
the  sale  was  not  made  upon  a  consideration  deemed  valuable  in 
law.26 

"1  Sugd.  Vend.  (8th  Am.  ed.)  528.  Nicholson  v.  Wadsworth,  2  Swanst. 
365. 

"Graham  v.  Hackwell,  1  A.  K.  Marsh.  (Ky.)  423.  Tysen  v.  Passmore,  2 
Barr  (Pa.),  122;  44  Am.  Dec.  181.  Trask  v.  Vinson,  20  Pick.  (Mass.)  109, 
the  court  saying:  "We  know  of  no  rule  of  law  or  principle  of  sound  policy 
which  prohibits  a  person  from  agreeging  or  covenanting  to  convey  an  estate 
not  his  own.  He  might  have  authority  from  the  owner  to  sell,  or  he  might 
have  the  refusal  of  the  estate,  or  he  might  rely  upon  his  ability  to  purchase 
it  in  season  to  execute  his  contract.  If  he  fairly  performs  the  terms  of  the 
stipulation  it  matters  nothing  to  the  purchaser  that  the  title  was  acquired 
after  the  contract." 

"Woodcock  v.  Bennet,  1  Cow.  (N.  Y.)  711;  13  Am.  Dec.  568.  This  is 
closely  analogous  to  the  rule  that  a  quit-claim  conveyance  will  not  estop  the 
grantor  from  setting  up  an  after-acquired  title  to  the  estate.  Post,  §  218. 
In  Mitchell  v.  Woodson,  37  Miss.  567,  it  was  held  that  an  agreement  to  quit 
claim  would  not  prevent  the  vendor  from  acquiring  and  holding  another 
title  before  the  time  for  making  the  quit  claim.  Citing  Bush  v.  Cooper,  20 
Miss.  599;  59  Am.  Dec.  270.  Jackson  v.  Wright,  14  J.ohns.  (N.  Y.)  193; 
Bank  v.  Mersereau,  3  Barb.  Ch.  (N.  Y.)  5<58;  Jackson  v.  Hubbell,  1  Cow. 
(N.  Y.)  613. 

"2  Sugd.  Vend.  (8th  Am.  ed.)  191,  192  (548).  Bennett  v.  A"am8,  41 
Barb.  (N.  Y.)  625. 

"Jerome  v.  Scudder,  2  Bob.    (N.  Y.)    169. 

*2  Story  Eq.  793b.     Froman  v.  Froman,  13  Ind.  317. 


484  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

If  the  contract  provides  only  that  the  vendor  shall  make  a  good 
and  sufficient  deed,  and  that  the  earnest  money  shall  be  refunded 
if  the  title  proves  to  be  not  good,  the  purchaser  cannot,  if  he  is 
dissatisfied  with  the  title,  refuse  to  accept  a  conveyance  with  gen- 
eral warranty,  reject  an  offer  to  return  the  purchase  money,  and 
require  the  vendor  to  remove  objections  to  the  title.  The  vendor, 
under  such  circumstances,  has  a  right  to  treat  the  contract  as 
rescinded,  and  to  seek  another  purchaser.27  Where  a  contract  for 
the  sale  of  land  provided  that  if  the  title  should  not  be  good  and 
should  be  refused  by  the  purchaser,  the  contract  should  be  void 
and  the  purchase  money  returned,  it  was  held  that  the  vendor  was 
not  thereby  obligated  to  cure  defects  in  the  title,  and  that  if  the 
title  were  rejected  he  might  terminate  the  contract  and  repay  the 
purchase  money.  The  purchaser  refused  to  proceed  with  the  pur- 
chase because  there  was  an  incumbrance  on  the  premises.28  And 
if  the  purchaser  by  his  acts  or  conduct  manifestly  abandons  the 
contract,  as  by  submitting  to  a  forfeiture  of  the  earnest  monej, 
he  cannot  afterwards  elect  to  affirm  the  agreement  and  have  a 
specific  performance  in  equity.  This  species  of  relief  is  a  matter 
of  sound  judicial  discretion,  and  where  the  court  perceives  that  the 
purchaser  has  virtually  rescinded  the  contract  it  will  not  interfere 
in  his  favor,  especially  if  in  the  meanwhile  the  property  has 
materially  increased  in  value.  He  cannot  keep  the  agreement 
open  indefinitely  so  as  to  avail  himself  of  a  rise  in  value,  or  t» 
escape  loss  in  case  of  a  depreciation.29  On  the  other  hand,  a  rapid, 
unexpected  and  unprecedented  increase  in  the  value  of  the  prop- 
erty while  the  title  is  being  perfected  will  not  justify  the  vendor 

"  Brizzolara  v.  Mosher,  71  111.  41. 

In  a  case  in  which  the  contract  provided  that  the  vendor  should  return 
the  deposit  and  should  not  be  liable  for  damages  in  case  the  purchaser  should 
be  warranted  in  rejecting  the  title  as  unmarketable,  it  was  held  that  the 
purchaser,  on  finding  the  title  unmarketable,  might  complete  the  contract, 
take  a  conveyance,  and  rely  on  the  grantor's  covenants  for  title,  or  that  he 
might  rescind  and  receive  back  his  deposit;  but  having  elected  to  rescind  he 
could  not  afterward  refuse  to  receive  back  his  deposit  and  insist  upon 
specific  performance  by  the  vendor.  Johnson  v.  Fuller,  55  Minn.  269 ;  56 
N.  W.  813. 

58  Long  v.  Miller,  46  Minn.  13;  48  N.  W.  Rep.  409. 

"Presbrey  v.  Kline,  20  D.  C.  513.  Giltner  v.  Rayl,  (Iowa)  61  N.  W.  Rep. 
225.  Simpson  v.  Atkinson  (Minn.),  39  N.  W.  Rep.  323. 


SPECIFIC  PERFORMANCE  OF  EXECUTORY  CONTRACTS.          485 

in  refusing  to  complete  the  contract,  where  the  purchaser  has 
waived  none  of  his  rights,  and  has  been  guilty  of  no  laches  or 
unjustifiable  delay  in  seeking  specific  performance.80 

There  must,  of  course,  be  an  unconditional  acceptance  of  an 
offer  to  sell  before  the  purchaser  can  maintain  a  bill  for  specific 
performance.  Therefore,  where  the  acceptance  by  the  purchaser 
was  qualified  by  the  addition  "  provided  the  title  is  perfect,"  it 
was  held  that  a  suit  for  specific  performance  could  not  be  main- 
tained by  the  purchaser.31 

§  194.  PAYMENT  OF  THE  PURCHASE  MONEY  AS  CONDITION 
PRECEDENT  TO  SPECIFIC  PERFORMANCE.  If  the  payment  of 
the  purchase  money  and  the  conveyance  of  title  by  the  vendor  are 
to  be  simultaneous  and  concurrent  acts,  neither  party  can  demand 
a  specific  performance  by  the  other  unless  he  is  ready  and  willing 
to  perform  on  his  part.  If  the  vendor  has  executed  a  bond  to 
convey  or  make  title  at  a  specified  time  after  payment  of  the 
purchase  money,  the*  retention  of  the  title  is  his  security  for  pay- 
ment, and  he  cannot  be  compelled  to  convey  unless  the  purchaser 
has  paid  or  offered  to  pay  the  purchase  money.32  A  recovery  of 
the  premises  from  the  purchaser  in  ejectment,  for  failure  to  pay 
the  purchase  money,  does  not  necessarily  deprive  him  of  the  right 
to  compel  a  specific  performance  of  the  contract.  Thus,  where  the 
purchaser  declined  to  pay  the  purchase  money  on  the  ground  that 
the  property  was  incumbered,  and  the  vendor  declared  a  forfeiture 
and  recovered  the  premises  in  ejectment,  it  was  held  that  the  pur- 
chaser might  waive  his  right  to  insist  upon  a  perfect  title,  pay 
the  balance  of  the  purchase  money,  less  the  amount  of  the  incum- 
brance,  and  compel  a  conveyance  from  the  vendor  with  covenants 
stipulated  for  in  the  contract.33 

"Keim  v.  Lindley,  (N.  J.  Eq.)  30  Atl.  Rep.  1063.  In  this  case  the 
premises  in  controversy  consisted  of  a  narrow  strip  of  water  front  that 
became  very  valuable  as  a  seaside  resort. 

n  Corcoran  v.  White,   117  111.  118;  57  Am.  Rep.  858. 

"Mix  v.  Beach,  46  111.  316.  Where  a  contract  for  the  sale  of  land  had 
been  rescinded  by  agreement  between  the  vendor  and  the  administrator  of  the 
vendee  after  part  of  the  purchase  money  had  been  paid,  it  was  held  that 
the  heirs  of  the  vendee,  who  repudiated  the  rescission,  could  not  compel 
specific  performance  of  the  contract  until  they  should  pay  or  tender  the 
residue  of  the  purchase  money.  Strange  v.  Watson,  11  Ala.  324. 

"Wallace  v.  McLaughlin,  57  Ind.  53. 


486  MARKETABLE    TITLE    TO    BEAT.    ESTATE. 

As  a  general  rule,  in  the  English  practice,  a  purchaser  who  has 
been  put  in  possession,  will  be  required  to  pay  the  purchase  money 
into  court  pending  his  suit  for  specific  performance.34  The  excep- 
tions to  this  rule  have  been  thus  summarized;  where  the  vendor 
has  thought  proper  to  put  the  purchaser  into  possession,  upon  an 
understanding  between  them  that  the  latter  shall  not  pay  the 
purchase  money  until  he  has  a  title,  the  purchaser  cannot  be  called 
upon  to  pay  the  money  into  court;  and  the  reason  is  that  the 
understanding  becomes  a  matter  of  contract  which  the  vendor  must 
abide  by,  and  he  cannot  call  upon  the  court  to  interfere  and  com- 
pel the  purchaser  to  part  with  his  money  before  he  has  a  title.35 
Nor  will  the  purchaser  be  compelled  to  pay  the  purchase  money 
into  court  before  the  completion  of  the  title,  where  the  vendor 
has  voluntarily  permitted  him  to  take  possession  without  any 
stipulation  or  agreement  about  paying  the  purchase  money.36 
And,  as  a  general  rule,  the  court  will  not  order  purchase  money  to 
be  paid  before  a  title  is  given,  unless  under  special  circumstances 
—  such  as  taking  possession  contrary  to  the  intention  or  against 
the  will  of  the  vendor,  or  where  the  purchaser  makes  frivolous 
objections  to  the  title,  or  throws  unreasonable  obstacles  in  the 
way  of  completing  the  purchase,  or  is  exercising  improper  acts 
of  ownership,  by  which  the  property  is  lessened  in  value.37  If  the 
purchaser  be  in  possession  under  a  title  anterior  to  the  contract, 
or  if  possession  were  given  independently  of  the  contract,  and 
there  is  laches  on  the  part  of  the  vendor  in  completing  the  title, 
the  court  will  not  order  the  purchase  money  to  be  paid  in.38 

The  purchaser,  of  course,  will  not  lose  his  right  to  a  specific 
performance  of  the  contract  by  failing  to  make  a  formal  tender 
of  the  purchase  money  if  he  has  notice  that  the  vendor  cannot  or 
will  not  carry  out  the  agreement.39 

"Birdsall  v.  Walton,  2  Edw.  Ch.    (N.  Y.)    315. 

"Gibson  v.  Clarke,  1  Ves.  &  B.  500. 

*  Clarke  v.  Elliott,  1  Mad.  C.  R.  606. 

wl  Sugd.  Vend.  (8th  Am.  ed.)  229,  345.  Bonner  v.  Johnston,  1  Meriv. 
366;  Boothby  v.  Waller,  1  Mad.  C.  R.  197. 

**Freebody  v.  Perry,  Coop.  91;   Fox  v.  Birch,  1  Meriv.  105. 

"•Ante,  p.  201.  Shattuck  v.  Cunningham,  166  Pa.  St.  368;  31  Atl. 
Rep.  136. 


SPECIFIC  PERFORMANCE  OP  EXECUTORY  CONTRACTS.          487 

§  195.  LACHES  OF  PURCHASER.  The  purchaser's  application 
for  specific  performance  must  be  seasonably  made.  He  cannot 
delay  the  payment  of  the  purchase  money  after  the  time  fixed  for 
completing  the  contract  and  then,  when  the  circumstances  of  the 
parties,  and  perhaps  the  value  of  the  land,  have  changed,  call  upon 
the  vendor  for  a  conveyance.40  This  rule  applies  with  peculiar 
force  where  the  vendor  notifies  the  purchaser  to  complete  the  con- 
tract within  a  specified  time  under  penalty  of  rescission.41  But 
the  purchaser  will  not  be  chargeable  with  laches  where  he  has 
delayed  paying  the  purchase  money  on  account  of  doubts  as  to  the 
title;  the  title  itself  being  in  litigation  or  dispute.42 

§  196.  DAMAGES  IN  EQTJITY.  As  a  general  rule  a  court  of 
equity  will  not  entertain  a  suit  by  the  purchaser  of  a  defective 
title,  if  no  other  relief  is  asked  than  damages  for  breach  of  the 
contract.43  Therefore,  it  has  been  frequently  held  that  if  he  files 
a  bill  seeking  specific  performance  or  damages  in  lieu  thereof, 
when  he  knows  specific  performance  is  impossible  by  reason  of  the 
fact  that  the  defendant  had  conveyed  the  premises  to  an  innocent 
third  party,  he  will  be  denied  relief,  because  such  a  proceeding  is 
practically  a  suit  for  damages  only.44  The  same  rule  will  apply, 
it  is  apprehended,  if  the  purchaser  knows,  or  is  bound  to  know, 
that  the  vendor  from  any  other  cause,  will  be  unable  to  perform 

"Shorthall  v.  Mitchell,  57  111.  161.  Melton  v.  Smith,  65  Mo.  355,  a  case  in 
which  the  vendor  failed  to  show  laches.  Pomeroy  v.  Fullerton,  131  Mo. 
581;  33  S.  W.  Rep.  173. 

"Chabot  v.  Winter  Park  Res.  Co.,  34   Fla.  258;    15  So.   Rep.  756. 

"Galloway  v.  Barr,  12  Ohio,  354.  Keim  v.  Lindley,  (N.  J.  Eq.)  30  Atl. 
Rep.  1063,  where  the  subject  was  considered  at  length.  Greenblatt  v.  Her- 
mann, 144  N.  Y.  13;  38  N.  E.  Rep.  966.  Cf.  Barbour  v.  Hickey,  2  App.  Gas. 
(D.  C.)  207. 

"1  Sugd.  Vend.  (8th  Am.  ed.)  350  (233);  Rawle  Covts.  (5th  ed.)  §  354. 
Courts  of  equity  in  England  are  empowered  by  "Lord  Cairns'  Act"  (21,  22 
Viet.  c.  27,  1858)  to  give  damages,  but  the  jurisdiction  is  limited  to  cases 
in  which  specific  performance  is  also  prayed.  Fry  Sp.  Perf.  (3d  Am.  ed.) 
p.  607,  notes;  Hatch  v.  Cobb,  4  Johns.  Ch.  (N.  Y.)  559;  Kempshall  v.  Stone, 
5  Johns.  Ch.  (N.  Y.)  193;  Morse  v.  Elmendorff,  11  Paige  Ch.  (N.  Y.)  279; 
Wiswall  v.  McGowan,  2  Barb.  (N.  Y.)  270.  Hill  v.  Flske,  38  Me.  520;  Smith 
v.  Kelly,  56  Me.  64.  Doan  v.  Mauzy,  33  111.  227.  McQueen  v.  Choteau,  20  Mo. 
222;  64  Am.  Dec.  178. 

"Sims  v.  Lewis,  5  Munf.  (Va.)  29.  Bullock  v.  Adams,  5  C.  E.  Gr.  (N.  J.) 
367.  Lewis  v.  Gale,  4  Fla.  437. 


488  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

the  decree  of  the  court.  But  damages  may  always  be  recovered 
in  equity  as  an  alternative  or  incident  to  some  other  relief  which 
is  in  good  faith  the  object  of  the  suit.45  If  the  vendor  in  his 
answer,  himself  asks  for  specific  performance  and  a  decree  for  the 
purchase  money,  he  waives  the  objection  that  the  purchaser's  rem- 
edy is  at  law ;  and  the  court  may  retain  the  action  for  the  purpose 
of  awarding  damages.46  If  the  vendor  fail  to  complete  his  con- 
tract at  the  appointed  time,  the  purchaser  may  have  specific 
performance  in  equity;  or,  if  the  title  be  defective  and  perform- 
ance be  impossible,  he  may  have  damages  in  lieu  thereof,47  unless 

46  Cases  cited  in  notes  above.     2  Story  Eq.  Juris,  794,  799;  3  Pom.  Eq.  Jur. 
(2d  ed.)    §  1410,  note  1.     Slaughter  v.  Tindle,  1  Litt.   (Ky.)   358;  Fisher  T. 

Kay,  2  Bibb  (Ky.),  434.  Scott  v.  Bilgerry,  40  Miss.  119.  Chinn  v.  Heale,  1 
Munf.  (Va.)  C3.  Taylor  v.  Rowland,  26  Tex.  293.  O'Beirne  v.  Bullis,  80 
Hun  (N.  Y.),  570;  30  N.  Y.  Supp.  588;  Margraf  v.  Muir,  57  N  Y.  155;  Miles 
v.  Furnace  Co.,  125  N.  Y.  294;  26  N.  E.  Rep.  261.  If  a  vendor  is  unable  from 
want  of  title  at  the  time  of  making  the  contract  to  carry  it  out,  a  court  of 
equity  in  a  suit  by  the  purchaser  for  specific  performance,  will  award  him 
damages,  provided  he  commenced  the  suit  in  good  faith,  without  knowledge  of 
the  disability.  Ryan  v.  Dunlap,  (Mo.)  20  S.  W.  Rep.  29;  McQueen  v.  Chou- 
teau,  20  Mo.  222;  54  Am.  Dec.  178;  Hamilton  v.  Hamilton,  59  Mo.  232.  IB 
New  York  in  a  suit  for  specific  performance,  if  the  defendant  be  unable  to 
perform,  the  purchaser  may  have  an  order  or  judgment  for  the  return  of  his 
purchase  money,  the  defendant  not  having  demurred  on  the  ground  that 
the  action  was  improperly  brought,  or  that  the  plaintiff  had  an  adequate 
remedy  at  law.  Styles  v.  Blume,  30  N.  Y.  Supp.  409.  In  Currie  v.  Cowles, 
6  Bosw.  (N.  Y.)  452,  it  was  said  by  ROBERTSON,  J.,  that  if  the  complainant 
in  a  suit  for  specific  performance  does  not  allege  that  good  title  cannot  b« 
made,  and  merely  seeks  a  conveyance,  he  cannot  in  the  absence  of  fraud  OB 
the  part  of  the  vendor  waive  the  relief  asked  for,  show  defendant's  want  of 
title,  and  charge  him  with  the  value  of  the  land.  The  authority  of  this 
dictum  may  be  doubted. 

44  Snow  v.  Monk,  80  N.  Y.  Supp.  719;  81  App.  Div.  206. 

47  Fry  Sp.  Perf.   (3d  Am.  ed.)    §  1227.     McFerran  v.  Taylor,  3  Cranch.   (U. 
S.  S.  C.)   270;  Pratt  v.  Campbell,  9  Cranch.   (U.  S.  S.  C.)   456,  494.     County 
of  Mobile  v.  Kimball,  102  U.  S.  691,  706.     Stevenson  v.  Buxton,  37  Barb. 

(N.  Y.)  13.  Taylor  v.  Rowland,  26  Tex.  293.  In  Fisher  v.  Kay,  2  Bibb 
(Ky.),  436,  it  was  said  that  there  was  no  principle  better  settled  than  that 
the  obligee  of  a  title  bond  might  resort  to  a  Court  of  Chancery  in  order  to 
enforce  specific  performance,  and  that  in  the  event  of  the  obligor's  being 
unable  to  convey,  to  pray  for  a  compensation  in  damages,  which,  the  court 
being  in  possession  of  the  whole  case,  would  allow.  In  Welsh  v.  Bayard,  6 
C.  E.  Gr.  (N.  J.  Eq. )  186,  specific  performance  was  denied  the  purchaser, 
(1)  because  the  contract  was  not  in  writing;  and  (2)  because  the  title  to 
the  premises  was  in  the  defendant's  wife.  The  purchaser  asked  a  decree  for 


SPECIFIC  PERFORMANCE  OF  EXECUTORY  CONTRACTS.          489 

the  plaintiff  knew  when  he  brought  his  suit  that  there  could  be 
no  performance.48  If  the  purchaser  is  first  informed  of  the  de- 
fective title  by  the  vendor's  answer  or  other  pleading,  the  juris- 
diction to  award  damages  will  be  clear.49  And  if  the  vendor 
convey  the  premises  to  an  innocent  party  pending  the  suit  for 
specific  performance,  the  purchaser  will  be  entitled  to  damages.6* 
In  a  few  cases  damages  have  been  awarded  the  plaintiff  though 
he  knew  when  he  brought  his  suit  that  the  defendant  had  rendered 
specific  performance  impossible  by  conveying  the  premises  to  a 
purchaser  without  notice;51  but  in  most  of  them  the  objection 
that  the  court  had  no  jurisdiction  does  not  appear  to  have  been 
made,  and  the  great  weight  of  authority  without  doubt  supports 
the  rule  heretofore  stated. 

It  has  been  held  that  if  the  complainant  fail  to  make  out  a  case 
entitling  him  to  specific  performance,  the  bill  may,  nevertheless, 
be  retained  for  the  purpose  of  allowing  him  compensation  if  he 
has  not  a  full  and  adequate  remedy  at  law.52  The  converse  of  this 
proposition,  also,  has  been  decided,  namely,  that  the  court  will 
entertain  a  bill  solely  for  compensation  and  damages  provided 
specific  performance  can  be  decreed.53 

The  court,  instead  of  giving  compensation  in  damages  for  a  por- 
tion of  the  land  to  which  title  cannot  be  made,  has  no  power  to 
decree  that  the  vendor  shall  make  up  the  deficiency  out  of  other 

repayment  of  the  purchase  money,  but  this  was  refused  on  the  ground  that 
his  remedy  was  at  law.  It  does  not  appear  that  he  was  advised  of  the  true 
state  off  the  title  when  he  brought  his  suit.  If  he  was  not  so  advised,  the 
case  is  at  variance  with  the  current  of  authority. 

**  2  Story  Eq.  Jur.  794,  et  seq. 

49  3  Pom.  Eq.  Jur.  §  1410.     Milkman  v.  Ordway,  106  Mass.  232. 

"This,  however,  in  England  seems  to  be  only  by  force  of  a  statute  (1858) 
21  &  22  Viet.  c.  27  ("Lord  Cairns'  Act")'  enlarging  the  jurisdiction  of  the 
Chancery  Courts.  1  Sudg.  Vend.  (8th  Am.  ed.)  352. 

"Woodcock  v.  Bennet,  1  Cow.  (N.  Y.)  711;  13  Am.  Dec.  568.  Gibbs  v. 
Champion,  3  Ohio,  337.  Cunningham  v.  Depew,  Morris  (Iowa),  462. 

"Aday  v.  Echols,  18  Ala.  353;  52  Am.  Dec.  225.  Specific  performance  was 
denied  in  this  case  because  it  did  not  appear  that  all  the  purchase  money 
had  been  paid. 

"Berry  v.  Vim  Winkle,  1  Gr.  Ch.  (N.  J.)  269;  Copper  v.  Wells,  Saxt. 
(N.  J.  Eq.)  10. 


490  MARKETABLE    TITLE    TO    REAL    ESTATE. 

adjoining  lands  to  which  he  has  title,  but  which  were  not  embraced 
in  the  contract.54 

The  measure  of  damages  for  which  a  vendor,  acting  in  good 
faith,  is  liable  if  he  be  unable  to  convey  a  good  title,  is  the  same 
in  equity  as  at  law ;  namely,  the  purchase  money  with  interest  and 
costs.55  But  if  the  vendor  be  guilty  of  fraud,56  or  if  he  disabled 
himself  from  performing  the  contract  by  conveying  the  premises 
to  an  innocent  purchaser,  the  complainant  will  be  entitled  to  a 
decree  for  the  loss  of  his  bargain,  that  is,  the  increased  value  of 
the  property.  If  the  vendor  received  a  profit  at  the  second  sale, 
it  will  be  decreed  to  the  complainant.57 

"Kelly  v.  Bibb,  3  Bibb   (Ky.),  317. 

65  Bain  v.  Fothergill,  L.  R.,  7  H.  L.  158;  Burrow  v.  Scammell,  19  Ch.  Dec. 
175,  181,  223. 

"Ante,  §  97. 

"Sugg  v.  Stone,  5  Jones  Eq.  (N.  C.)  126;  Taylor  v.  Kelly,  2  Jones  Eq. 
(N.  C.)  240.  Graham  v.  Hackwith,  1  A.  K.  Marsh.  (Ky.)  424;  Rutledge  v. 
Lawrence,  1  A.  K.  Marsh.  (Ky.)  390;  Gerault  v.  Anderson,  2  Bibb  (Ky.),  543. 


CHAPTER   XVIII. 

OF  THE  RIGHT  OF  THE  PURCHASER  TO  TAKE  TITLE  WITH  COM- 
PENSATION  FOR  DEFECTS. 

GENERAL  RULE.     §  197. 

INDEMNITY  AGAINST  FUTTTRE  LOSS.     §  198. 

INDEMNITY  AGAINST  DOWER.     §  199. 

EXCEPTIONS  TO  GENERAL  RULE.     §  200. 

RIGHT  OF  VENDOR  TO  RESCIND  ON  FAILURE  OF  TITLE.     §  201. 

§  197.  GENERAL  RULE.  We  shall  see  that  ii  the  title  to  a  sub- 
stantial part  of  the  subject  fails  or  if  an  incumbrance  other  than 
a  trifling  or  inconsiderable  charge  on  the  premises  is  discovered 
after  the  purchase  money  has  been  paid,  the  purchaser  may  rescind 
the  contract,  if  executory,  and  cannot  be  required  to  take  the  title 
with  compensation  for  defects.1  Yet  there  is  no  obligation  upon 
him  to  rescind;  as  a  general  rule  he  may  compel  the  vendor  to 
convey  to  him  that  part  to  which  the  title  is  good,  with  compensa- 
tion, or  abatement  of  the  purchase  money  for  the  portion  to  which 
the  title  failed,  or  he  may  take  such  estate  as  the  vendor  may  have 
in  the  entire  premises,  though  less  than  that  which  was  sold,  and 
have  an  abatement  of  the  purchase  money  according  to  the  differ- 
ence in  value  of  the  two  estates.2  The  same  rule  has  been  applied 

'Post,  §  326. 

1 1  Sudg.  Vend.  (8th  Am.  ed.)  479,  466,  480;  2  Story  Eq.  779;  2  Beach  Eq. 
Jur.  §  627;  Pomeroy  Sp.  Perf.  §  438;  Bish.  Eq.  (3d  ed.)  390;  Dart's  Vend. 
(5th  ed.)  p.  1066;  Waterman  on  Sp.  Perf.  §  499.  Wood  v.  Griffith,  1  Swanst. 
54,  per  Lord  ELDON,  who  said :  "  No  one  will  dispute  this  proposition  that  if 
a  man  offers  to  sell  an  estate  in  fee  simple,  and  it  appears  that  he  is  unable 
to  make  a  title  to  the  fee  simple,  he  cannot  refuse  to  make  a  title  to  all  that 
he  has.  The  purchaser  may  insist  on  having  the  estate,  such  as  it  ,18.  The 
vendor  cannot  say  that  he  will  give  nothing  because  he  is  unable  to  give  all 
that  he  has  contracted  to  give.  If  a  person  possessed  of  a  term  for  100  years 
contracts  to  sell  the  fee,  he  cannot  compel  the  purchaser  to  take,  but  the 
purchaser  can  compel  him  to  convey  the  term,  and  this  court  will  arrange  the 
equities  between  the  parties."  Wheatley  v.  Slade,  4  Sim.  126;  Hill  v. 
Buckley,  17  Ves.  394,  semble;  Bradley  v.  Munton,  15  Beav.  460;  Mortlock  v. 
Buller,  10  Ves.  Jr.  316;  Mawson  v.  Fletcher,  L.  R.,  6  Ch.  App.  91;  Paton  v. 
Rogers,  1  Ves.  &  Ben.  352;  James  v.  Lichfield,  L.  R.,  9  Eq.  51;  Barnes  v. 
Wood,  L.  R.,  8  Eq.  424;  Whittemore  v.  Whittemore,  L.  R.,  8  Eq.  603;  Hor- 
rocks  v.  Rigby,  L.  R.,  9  Ch.  D.  180;  Burrow  v.  Scammell,  L.  R.,  19  Ch.  D.  175. 


492  MARXETABLE    TITLE    TO    REAL    ESTATE. 

in  a  case  where  the  contract  had  been  executed  with  covenants  for 
title  in  which  the  parties  were  mutually  mistaken  in  respect  to 
the  title  of  a  part  of  the  land.  It  was  considered  that  the  grantee 
might  hold  the  part  to  which  the  title  wras  good  and  recover  on 

In  Williams  v.  Edwards,  2  Sim.  98,  where  there  was  a  stipulation  that  errors 
in  the  description  should  not  vitiate  the  agreement,  but  that,  if  the  pur- 
chaser's counsel  should  be  of  opinion  that  the  title  was  not  marketable,  the 
agreement  should  be  void,  and  the  counsel  was  of  opinion  that  title  could  be 
made  to  two-thirds  of  the  property  only,  the  purchaser  was  refused  specific 
performance  with  an  abatement.  To  the  text:  Morgan  v.  Morgan,  2  Wh. 
(U.  S.)  302,  n.  Morss  v.  Elmendorf,  11  Paige  (N.  Y.),  277;  Westervelt  v. 
Mattheson,  1  Hoff.  Ch.  (N.  Y.)  37;  Jerome  v.  Scudder,  2  Rob.  (N.  Y.)  169; 
Bostwick  v.  Beach,  103  N.  Y.  414.  Felix  v.  Devlin,  86  N.  Y.  Supp.  12;  90 
App.  Div.  103.  Jones  v.  Shackleford,  2  Bibb  (Ky.),  411 ;  McConnell  v.  Dunlap, 
Hard.  (Ky.)  41;  3  Am.  Dec.  723;  Step  v.  Alkire,  2  A.  K.  Marsh.  (Ky.)  259; 
Rankin  v.  Maxwell,  2  A.  K.  Marsh.  (Ky.)  494;  12  Am.  Dec.  431.  Graham  v. 
Gates,  6  Harr.  &  J.  (Md.)  229;  Drury  v.  Connor,  6  Harr.  &  J.  (Md.)  288. 
Evans  v.  Kingsberry,  2  Rand.  (Va.)  120;  Chinn  v.  Heale,  1  Munf.  (Va.)  63; 
White  v.  Dobson,  17  Grat.  (Va.)  262.  Hudson  v.  Max  Meadows  L.  &  I.  Co., 
97  Va.  341;  33  S.  E.  Rep.  586.  Satterfield  v.  Spier,  114  Ga.  127;  39  S.  E. 
Rep.  930.  Henry  v.  Liles,  2  Ired.  Eq.  (N.  C.)  407;  Wilcoton  v.  Galloway,  67 
N.  C.  463.  Tilley  v.  Land  Co.,  136  N.  C.  437 ;  48  S.  E.  Rep.  824.  Austin  v. 
Ewell,  25  Tex.  Supp  403,  where  there  was  a  mistake  as  to  boundaries ;  Roberts 
v.  Lovejoy,  60  Tex.  253.  Collins  v.  Smith,  1  Head  (Tenn.),  251;  Topp  v. 
White,  12  Heisk.  (Tenn.)  165;  Moses  v.  Wallace,  7  Lea  (Tenn.),  413.  Weth- 
erell  v.  Brobst,  23  Iowa,  586.  Luckett  v.  Williamson,  31  Mo.  54.  Adams  v. 
Messenger,  147  Mass.  185;  17  N.  E.  Rep.  491;  9  Am.  St.  Rep.  679.  Tobin  v. 
Larkin,  183  Mass.  389;  67  N.  E.  Rep.  340.  See,  also,  Massachusetts  cases 
cited,  infra.  "  Indemnity  against  contingent  right  of  dower."  To  the  text : 
Swain  v.  Burnett,  76  Cal.  299;  18  Pac.  Rep.  394;  Marshall  v.  Caldwell,  41 
Cal.  614;  Morehhout  v.  Barren,  42  Cal.  591.  Florence  Oil,  etc.,  Co.  v.  Mc- 
Candless,  26  Colo.  534;  58  Pac.  1084.  Rohr  v.  Kindt,  3  W.  &  S.  (Pa.)  563; 
39  Am.  Dec.  53 ;  Barnes'  Appeal,  46  Pa.  St.  350 ;  Erwin  v.  Myers,  46  Pa.  St. 
96.  Wallace  v.  McLaughlin,  57  111.  53.  Cowan  v.  Kane,  211  111.  572:  71 
N.  E.  Rep.  1097.  Lounsbery  v.  Locander,  25  N.  J.  Eq.  555;  Meleck  v.  Cross,  62 
N.  J.  Eq.  545;  51  Atl.  16.  Wilson  v.  Cox,  50  Miss.  133.  Moses  v.  Wallace,  7 
Lea  (Tenn.),  413.  Gartrell  v.  Stafford,  12  Neb.  545;  11  N.  W.  Rep.  732.  Beck 
v.  Bridgman,  40  Ark.  382.  Vagueness  and  uncertainty  in  the  pleadings  and 
proof,  or  a  variance  between  them  as  to  whether  the  vendor  covenanted  to 
convey  the  entire  interest  in  lands,  or  only  his  undivided  interest,  is  no  objec- 
tion to  a  decree  for  specific  performance,  since  the  court  can  only  compel  him 
to  convey  such  interest  as  he  may  have.  Bogan  v.  Baughdrill,  51  Ala.  312, 
citing  3  Pars.  Cont.  354.  The  purchaser  has  a  right  to  accept  an  undivided 
interest,  with  compensation,  in  lieu  of  the  entirety.  Covell  v.  Cole,  16  Mich. 
223.  In  Cady  v.  Gale,  5  W.  Va.  547,  one  who  has  sold  his  wife's  separate 
estate  as  his  own  was  compelled  to  convey  his  life  estate  by  the  curtesy,  the 
purchaser  electing  to  take  such  estate.  The  purchaser  cannot  maintain  a 


BIGHT  OF  PUECHASER  TO  TAKE  TITLE  WITH  COMPENSATION, 


493 


the  warranty  as  to  the  residue.8  The  purchaser  may  insist  upon 
specific  performance  with  an  abatement  of  the  purchase  money, 
if  he  be  unable  to  obtain  the  benefit  of  an  easement  appurtenant 
to  the  premises.  Thus,  where  the  owner  of  land  sold  it  as  building 
lots,  bounding  the  lots  on  streets  of  a  specified  width,  as  laid  down 
on  a  map  but  not  actually  opened,  and  the  vendor  did  not  own  all 
the  streets  designated  on  the  map,  and  hence  could  not  be  com- 
pelled to  open  them,  the  purchaser  was  held  entitled  to  an  abate- 
ment of  the  price  to  the  extent  of  the  loss  sustained  on  that 
account.4 

A  subsequent  conveyance  by  the  vendor  is  no  ground  for  re- 
fusing specific  performance  if  the  purchaser  be  willing  to  accept 
what  remains  of  the  land,  with  an  abatement  of  the  purchase 
money;6  and  this,  though  the  subsequent  conveyance  were  made 
with  his  consent.6  The  vendor  cannot  object  to  specific  perform- 
ance on  the  ground  that  he  holds  a  bare  legal  title  in  trust  for 
another,  if  the  purchaser  be  willing  to  accept  such  title.7  Nor 
can  he  object  that  the  title  is  outstanding  in  a  third  person.8  The 
purchaser  may  take  the  equitable  title  if  he  chooses,  though,  as 
will  be  seen  hereafter,  he  cannot  be  compelled  to  accept  such  a 
title.'  The  purchaser  may  compel  a  surviving  tenant  in  common 
to  convey,  though  the  heir  of  the  deceased  tenant  in  common  can- 
not be  compelled  to  complete  the  contract.10  If  the  parties  are 
mutually  mistaken  as  to  the  vendor's  title  to  a  part  of  the  land, 
the  purchaser,  having  improved  the  premises,  may  compel  the 
render  to  convey  the  other  part,  and  have  a  ratable  abatement  of 

guit  for  specific  performance  against  the  vendor  and  a  third  person  in  adverse 
possession  of  part  of  the  land  under  a  title  adverse  to  that  of  the  vendor,  and, 
in  case  the  adverse  claim  is  sustained,  to  have  an  abatement  of  the  purchase 
money.  His  remedy  is  in  ejectment.  Lang  v.  Jones,  5  Leigh  (Va.),  192. 

1  Butcher  v.  Peterson,  26  W.  Va.  447 ;  53  Am.  Rep.  89,  citing  Atty.-Gen.  T. 
Day,  1  Ves.  218.  Beverly  v.  Lawson,  3  Munf.  (Va.)  317.  Compare,  Silliman 
v.  Gillespie,  48  W.  Va.  374;  37  S.  E.  Rep.  669.  See,  also,  Clark  v.  Hardgrove, 
7  Grat.  (Va.)  399.  But  see  post,  this  chapter,  "Exceptions,"  as  to  mistake. 

4Leiker  v.  Henson,  (.Tenn.)  41  S.  W.  Rep.  862. 

*  Wingate  v.  Hamilton,  7  Ind.  73.     Bass  v.  Gilliland,  5  Ala.  761. 
•Waters  v.  Travis,  9  Johns.   (N.  Y.)    450. 

T  Hyde  v.  Kelly,  10  Ohio,  215. 

*1  Sugd.  Vend.   (8th  Am.  ed.)   525,  532    (349,  355). 

•  Post,  ch.  31,  §  290. 
"Atty.-Gen.  v.  Day,  1  Ves.  218. 


494  MARKETABLE    TITLE    TO    REAL    ESTATE. 

the  purchase  money  for  the  deficiency.11  The  vendor  cannot 
refuse  to  convey  on  the  ground  that  the  property  is  incumbered. 
The  purchaser  has  a  right  to  insist  upon  the  application  of  the 
unpaid  purchase  money  to  the  incumbrance.12  A  charge  upon  the 
premises  for  the  maintenance  of  a  third  person  is  no  reason  why 
the  contract  should  not  be  specifically  performed,  if  the  purchaser 
be  willing  to  take  the  title  with  warranty." 

The  basis  upon  which  compensation  or  abatement  for  the  part 
to  which  a  title  cannot  be  made  will  be  decreed,  is  the  actual  value 
of  the  part  lost,  and  not  merely  the  average  price  per  acre  agreed 
to  be  paid  for  the  whole  tract14  The  rule  in  this  respect  is  the 
same  as  in  actions  at  law  for  breach  of  the  covenants  for  title.15 
If  the  title  to  the  entire  premises  is  good,  but  there  is  a  deficiency 
in  the  acreage  or  quantity  purchased,  the  question  whether  the 
purchaser  will  be  entitled  to  an  abatement  of  the  purchase  money 
depends  upon  whether  the  contract  was  one  of  hazard  as  to  the 
quantity,  or  whether  the  purchaser  is  entitled  under  the  contract 
to  demand  a  specific  number  of  acres  or  other  measure  of  quantity. 
The  question  is  somewhat  foreign  to  the  plan  and  scope  of  this 
work.  The  cases,  in  great  numbers,  will  be  found  collected  in  the 
standard  text  books.16 

If  the  purchaser  when  sued  for  the  purchase  money  by  the  ven- 
dor or  his  assignee,  elect  to  keep  the  premises  though  the  title  be 
defective,  he  cannot  afterwards,  when  a  bill  is  filed  to  subject  hie 
equitable  interest  in  the  premises  to  the  payment  of  the  judgment 
for  the  purchase  money,  avail  himself  of  want  of  title  in  the 
vendor  as  a  defense." 

"Voorhees  v.  De  Meyer,  3  Sandf.  Ch.   (N.  Y.)   614. 

11  Jerome  v.  Scudder,  2  Rob.  (N.  Y.)  169.  Hunt  v.  Smith,  139  111.  296;  28 
N.  E.  Rep.  809. 

"Bates  v.  Swiger,    (W.  Va.)    21   S.  E.  Hep.  874. 

"Jacobs  v.  Locke,  2  Ired.  Eq.  (N.  C.)  286.  Moses  v.  Wallace,  7  Lea 
(Tenn.),  413.  Cypress  Lumber  Co.  v.  Tiller,  73  Ark.  354;  84  S.  W.  Rep.  490. 

"Ante,  §  170.  Doctor  v.  Hellberg,  65  Wis.  415;  27  N.  W.  Rep.  176.  In 
•determining  the  compensation,  the  peculiar  value  of  the  tr:.ct,  if  unimcum- 
bered,  to  the  complainant  in  connection  with  his  other  land,  cannot  be  con- 
sidered. Capstick  v.  Crane,  66  N.  J.  Eq.  341;  57  Atl.  Rep.  1045. 

"Fry  Sp.  Perf.  (3d  ed.)  p.  578,  et  seq.;  1  Sugd.  Vend.  (8th  Am.  ed.)  491 
(324)  :  2  Story  Eq.  Jur.  ch.  19.  See  Ketchum  v.  Stout,  20  Ohio,  453,  whe^e 
the  subject  is  elaborately  discussed,  and  many  authorities  collected. 

"Dart  v.  McQuilty,  6  Ind.  391. 


RIGHT  OF  PURCHASER  TO  TAKE  TITLE  WITH  COMPENSATION.      495 

A  decree  for  specific  performance  should  not  direct  that  the 
vendor  procure  releases  from  parties  over  whom  he  has  no  control ; 
but  it  should  direct  an  inquiry  by  a  master  as  to  defects  and  in- 
cumbrances,  and  order  that  the  purchase  money  be  abated  or  paid 
to  a  referee  or  other  officer  of  the  court,  or  be  brought  into  court, 
to  be  applied,  as  far  as  necessary,  to  the  discharge  of  incum- 
brances,  and  the  balance,  if  any,  be  paid  over  to  the  vendor.18 

The  purchaser  in  possession  and  insisting  upon  specific  per- 
formance of  the  contract  with  abatement  of  the  purchase  money 
as  to  that  part  of  the  land  to  which  the  title  had  failed,  must 
surrender  that  part  to  the  vendor.  He  cannot  refuse  to  pay  the 
purchase  money  and  at  the  same  time  retain  possession.19 

§  198.  INDEMNITY  AGAINST  FTTTT7BE  LOSS.  The  purchaser 
cannot  demand  an  indemnity  other  than  that  afforded  by  the  cove- 
nants for  title,  against  a  possible  loss  from  a  defect  in  the  title  to 
the  estate,20  or  an  incumbrance  on  the  property,  except  in  the  case 
of  an  inchoate  right  of  dower  in  the  premises,21  if  indeed  the  deten- 
tion of  the  purchase  money  to  the  extent  of  the  present  value  of 
that  right  be  regarded  as  indemnity  and  not  compensation.  Per- 
haps the  most  important  case  that  has  arisen  in  the  United  States 
illustrating  this  principle,  is  that  of  Refeld  v.  Woodfolk,  22  How. 
(U.  S.)  318.  There  the  purchaser  of  a  large  estate  paid  the  pur- 
chase money  in  full,  knowing  that  there  was  an  incumbrance  on 
the  property  amounting  to  $60,000.  Afterwards  he  filed  a  bill 
for  specific  performance,  and  that  the  vendor  be  compelled  to 
remove  the  incumbrance  from  the  property  or  to  indemnify  him 
against  it  when  it  should  mature  and  become  enforceable.  The 
court  decreed  that  the  vendor  convey  the  property  with  general 
warranty ;  that  he  remove  the  incumbrance  when  it  should  mature, 
and  that  in  the  meanwhile  he  deposit  State  bonds,  to  the  amount 

"Jerome  v.  Scudder,  2  Rob.   (N.  Y.)    169. 

'•Lanyon  v.  Chesney,   186  Mo.  540. 

"Sugd.  Vend.  (8th  Am.  ed.)  467  (306)  574  (383)  ;  Fry  Sp.  Perf.  (3d  Am. 
ed.)  §  1245;  Batten  Sp.  Perf.  Law  Lib.  171.  Balmanno  v.  Lumley,  1  Vis. 
&  Bea.  225,  per  Lord  ELDON  ;  Paton  v.  Brebner,  1  Bligh,  66;  Aylett  v.  Ashton, 
1  Myl.  &  Cr.  105;  Bainbridge  v.  Kinniard,  32  Beav.  346;  Ross  v.  Boards,  3  Nev. 
&  Per.  382;  Lawrenson  v.  Butler,  1  Sch.  &  Lef.  13;  Mortlock  v.  Butler,  10 
Ves.  292 ;  Colver  Clay,  7  Beav.  189.  Lounsbery  v.  Locander,  25  N.  J.  Eq.  554. 

M  Young  v.  Paul,  10  X.  J.  Eq.  415;  64  Am.  Dec.  456.     Post,  this  chapter. 


496  MARKETABLE    TITLE    TO    REAL    ESTATE. 

of  the  incumbrance,  with  the  clerk  of  the  court  as  an  indemnity 
against  the  possible  enforcement  of  the  incumbrance.  This  decree 
was  reversed  on  appeal,  the  court  holding  that  the  purchaser  had 
no  right  to  any  other  or  greater  indemnity  than  that  afforded  by 
the  covenant  of  warranty  which  his  contract  entitled  him  to 
demand.  A  different  rule  has  been  held  to  prevail,  where  the 
contract  has  been  executed  by  the  delivery  of  a  conveyance  with  a 
covenant  against  incumbrances.  The  reason  given  for  the  distinc- 
tion is  that  in  an  executory  contract  for  the  sale  of  lands  there 
can  be  no  implication  of  an  agreement  to  provide  an  indemnity 
against  an  immature  or  doubtful  incumbrance  upon  the  estate.22 

§  199.  INDEMNITY  AGAINST  INCHOATE  EIGHT  OF  DOWER. 
If  the  wife  refuse  to  join  with  her  husband  in  the  conveyance, 
she  cannot  be  compelled  so  to  do.23  The  purchaser  may  of  course 
elect  to  accept  the  conveyance  of  the  husband  alone.24  Whether, 
in  such  a  case,  he  may  demand  an  abatement  of  the  purchase 
money,  as  an  indemnity  against  a  possible  claim  for  dower  in  the 
future,  is  a  question  upon  which  there  is  a  conflict  of  decision; 
but  the  weight  of  authority  and  the  better  view  seems  to  be  that 
the  purchase  money  may  be  abated.26  If  the  written  contract 

KIn  Thomas  v.  St.  Paul's  M.  E.  Church,  86  Ala.  138;  5  So.  Rep.  508,  the 
vendor  was  required  to  provide  the  purchaser  with  an  indemnity  against  an 
incumbrance  on  the  premises.  The  case  was  distinguished  from  Refeld  v. 
Woolfolk,  supra,  by  the  fact  that  the  contract  had  been  executed  by  convey- 
ance with  covenant  against  incumbrances,  while  in  the  latter  case  the  con- 
tract was  merely  executory.  The  former  case  may,  therefore,  be  regarded  as 
establishing  the  proposition  that  in  case  of  a  contract  executed  with  a  cove- 
nant against  incumbrances,  the  grantee  may  in  equity  require  the  vendor 
either  to  remove  the  incumbrance,  or  provide  an  indemnity  against  it.  There 
is  also  an  intimation  in  this  case  that  if  the  contract  had  provided  that  if 
the  purchaser  had  received  a  conveyance  with  a  covenant  against  incum- 
brances, the  vendor  might  have  been  compelled  to  provide  an  indemnity 
against  an  existing  incumbrance,  though  the  contract  was  still  executory. 

23  2  Story  Eq.  Jur.  §  731.     Troutman  v.  Gowing,   16  Iowa,  415.     Hanna  v. 
Phillips,  1  Grant   (Pa.),  253.     Allison  v.  Shilling,  27  Tex.  450;  86  Am.  Dec. 
622.     Yost  v.  Devault,  9  Iowa,  60.     Richmond  v.  Robinson,  12  Mich.   193. 

24  Zebley  v.  Sears,  38  Iowa,  507.     Corson  v.  Mulvany,  49  Pa.  St.  88 ;  88  Am. 
Dec.  485.     Steadman  v.  Handy    (Va.),  46  S.  E.  Rep.  380. 

25 1  Sugd.  Vend.  (8th  Am.  ed.)  465,  semble,  citing  Wilson  v.  Williams,  3 
Jur.  N.  S.  810.  Davis  v.  Parker,  14  Allen  (Mass.),  94;  Woodbury  v.  Luddy, 
14  Allen  (Mass.),  1;  92  Am.  Dec.  731.  Wright  v.  Young,  6  Wis.  127;  70  Am. 
Dec.  453.  Sanborn  v.  Nockin,  20  Minn.  178.  Troutman  v.  Gowing,  16  Iowa, 


1UGIIT  OF  PUBCHASEB  TO  TAKE  TITLE  WITH  COMPENSATION.       497 

between  the  parties  contain  no  stipulation  for  a  deed  with  a  cove- 
nant against  incumbrances,  and  there  is  no  provision  in  the  con- 
tract as  to  the  contingent  right  of  dower  of  the  vendor's  wife,  the 
purchaser,  knowing  of  the  existence  of  such  right,  cannot  insist 
upon  a  conveyance  with  abatement  of  the  purchase  money  as  in- 

415;  Leach  v.  Forney,  21  Iowa,  271;  89  Am.  Dec.  574;  Presser  v.  Hildebrand, 
23  Iowa,  484;  Zebley  v.  Sears,  38  Iowa,  507.  Wingate  v.  Hamilton,  7  Ind. 
73.  See,  also,  Wilson  v.  Brumfield,  8  Bl.  (Ind.)  146;  Baker  v.  Railsback;  4 
Ind.  553;  Hazelrig  v.  Hutson,  18  Ind.  481;  Martin  v.  Merritt,  57  Ind.  34; 
26  Am.  Rep.  45.  An  ingenious  view  of  this  question  has  been  taken  in  a  note 
to  the  case  of  Humphrey  v.  Clement,  44  111.  (2d  ed.)  300.  The  annotator 
concludes  that  a  case  in  which  the  release  of  the  contingent  right  of  dower 
cannot  be  procured,  is  one  for  decreeing  damages  against  the  vendor  rather 
than  compensation  or  indemnity  to  the  purchaser;  and  for  this  purpose  he 
considers  it  unnecessary  that  the  value  of  the  contingent  right  of  dower  shall 
be  capable  of  computation.  "  The  damages  would  be  the  injury  to  the  vendee 
by  virtue  of  being  obliged  to  take  the  estate  subject  to  the  inchoate  right, 
not  the  value  of  the  dower  to  the  wife.  If  a  jury  in  an  action  at  law  could 
estimate  the  injury  to  the  vendee  at  $250,  why  could  not  a  chancellor  esti- 
mate the  deduction  which  should  be  made  from  the  purchase  money  at  the 
use  of  the  $250  so  long  as  the  wife  should  live  ?  "  It  has  been  since  held  in 
this  State,  that  the  purchaser  cannot  insist  upon  a  conveyance  with  abate- 
ment of  the  purchase  money  to  the  extent  of  the  present  value  of  the  inchoate 
right  of  dower.  Cowan  v.  Kane,  211  111.  572;  71  N.  E.  Rep.  1097.  In  Heim- 
Imrg  v.  Ismay,  35  N.  Y.  Super.  Ct.  35,  it  was  held  that  an  inchoate  right  of 
dower  in  the  wife  of  the  vendor  was  an  incumbrance  constituting  a  breach 
of  a  contract  to  convey  free  from  incumbrances;  and  that  the  purchaser  was 
ontitled  to  more  than  nominal  damages,  the  vendor  having  entered  into  the 
contract  with  full  knowledge  that  his  power  to  convey  was  contingent.  See, 
also,  Williams  v.  Pope,  Wright  (Ohio),  406;  Reynolds  v.  Clark,  Wright 
(Ohio),  656. 

The  cases  in  which  the  right  of  the  purchaser  to  specific  performance  with 
abatement  of  the  purchase  money,  or  decree  for  damages  on  account  of  an 
inchoate  right  of  dower,  is  denied,  have  been  in  some  instances  rested  upon  the 
supposed  want  of  means  for  ascertaining  the  amount  which  the  purchaser  may 
detain;  and  in  others,  upon  the  idea  that  the  wife  is  in  effect  morally  coerced 
to  join  in  the  deed,  by  a  decree  directing  that  her  husband  shall  pay  damages 
in  the  event  of  her  refusal.  Bitner  v.  Brough,  1  Jones  (Pa.),  138;  Riddle- 
berger  v.  Mintzer,  7  Watts  (Pa.),  143;  Wilier  v.  Weyand,  2  Grant  (Pa.),  103; 
Shurtz  v.  Thomas,  8  Barr  (Pa.),  363;  Clark  v.  Seirer,  7  Watts  (Pa.),  107; 
32  Am.  Dec.  745;  Riesz's  Appeal,  73  Pa.  St.  485;  Burk's  Appeal.  75  Pa.  St. 
141;  15  Am.  Rep.  587;  Burk  v.  Serrill,  80  Pa.  St.  413;  21  Am.  Rep.  105. 
Lucas  v.  Scott,  41  Ohio  St.  636.  People's  Sav.  Bank  v.  Parisette,  68  Ohio  St. 
450 ;  67  N.  E.  Rep.  896 ;  Phillips  v.  Stanch,  20  Mich.  369.  Hopper  v.  Hopper, 
16  N.  J.  Eq.  147.  Hawralty  v.  Warren,  18  N.  J.  Eq.  124;  Reilly  v.  Smith,  25  N. 
J.  Eq.  158.  Humphrey  v.  Clement,  44  111.  299;  Cowan  v.  Kane,  211  111.  572; 
71  N.  E.  Rep.  1097.  Barbour  v.  Hickey,  2  App.  Cas.  (Dist.  of  Col.),  207; 
32 


498  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

demnity.2*  The  sum  which  the  purchaser  may  detain  is  the  money 
value  of  the  contingent  interest  of  the  wife,  calculated  according 
to  some  one  of  the  standard  tables  of  longevity.27  It  is  to  be 
observed  that  the  abatement  of  the  purchase  money  does  not  affect 
th/e  rights  of  the  wife.  She  is  no  party  to  the  proceeding,  andr 
if  she  were,  she  could  not  be  compelled  to  accept  a  sum  of  money 
in  lieu  of  her  contingent  right  of  dower ;  for  that  in  effect  would 
be  to  compel  her  to  perform  specifically  the  contract  of  her  hus- 
band.*8 As  to  the  rights  of  the  vendor;  it  is  true  that  he  may 
survive  his  wife,  by  which  the  necessity  for  any  indemnity  would 
be  removed ;  but  the  decree  might  provide  for  that  contingency  by 
directing  that  the  purchaser  shall  give  bond  with  security  to  pay 
the  abated  sum  with  interest  upon  the  death  of  the  wife  living  the 

eternberg  v.  McGovern,  56  N.  Y.  12;  Dixon  v.  Rice,  16  Hun  (N.  Y.),  422. 
Swepson  v.  Johnston,  84  N.  C.  449.  In  Sternberger  v.  McGovern,  56  N.  Y.  12, 
which  was  a  suit  to  enforce  specific  performance  of  a  contract  for  the  exchange 
of  lands,  it  was  held  that  the  plaintiff  could  not  have  a  decree  against  the 
defendant,  whose  wife  refused  to  join  in  a  conveyance  by  him,  for  the  differ- 
ence between  the  value  of  the  property  with  a  release  of  the  inchoate  right  of 
dower,  and  the  value  without  such  release.  In  Dixon  v.  Rice,  16  Hun  (N.  Y.), 
422,  and  Martin  v.  Colby,  42  Hun  (N.  Y.),  1,  it  was  held  that  if  the  wife 
refused  to  join  in  the  conveyance,  the  purchaser  could  not  take  a  conveyance 
from  the  husband  alone  with  damages  or  compensation  for  the  wife's  contin- 
gent right  of  dower,  but  must  abandon  his  claim  for  specific  performance 
and  sue  at  law  for  damages  alone.  It  may  be  doubted  whether  a  court  in  such 
a  case,  as  against  a  vendor  acting  in  good  faith,  would  give  damages  beyond 
the  present  value  of  the  wife's  inchoate  right  of  dower.  And  if  the  plaintiff 
could  recover  such  damages  at  law,  no  reason  is  perceived  why  the  same  should 
not  be  allowed  by  way  of  compensation  or  abatement  in  his  suit  for  specific 
performance,  as  a  matter  of  ancillary  relief. 

"•  People's  Sav.  Bank  v.  Parisette,  68  Ohio  St.  450 ;  67  N.  E.  Rep.  896. 

91  The  rule  for  calculating  the  present  value  of  the  wife's  contingent  right 
of  dower  was  thus  stated  in  Jackson  v.  Edwards,  7  Paige  Ch.  (N.  Y.)  408. 
"  Ascertain  the  present  value  of  an  annuity  for  her  life  equal  to  the  interest 
in  the  third  of  the  proceeds  of  the  estate  to  which  her  contingent  right  of 
dower  attaches,  and  then  deduct  from  the  present  value  of  the  annuity  for  her 
life,  the  value  of  a  similar  annuity  depending  upon  the  joint  lives  of  herself 
and  her  husband ;  and  the  difference  between  those  two  sums  will  be  the 
present  value  of  her  contingent  right  of  dower  (McKean's  Pr.  L.  Tables,  23, 
§  4;  Hendry's  Ann.  Tables,  87,  Prob.  4.)"  Of  course  in  a  suit  for  specific 
performance  against  the  husband,  the  object  in  ascertaining  the  present  value 
of  the  wife's  interest,  is  not  to  compel  her  to  take  it,  but  to  arrive  at  the 
sum  which  the  purchaser  may  detain  as  an  indemnity  against  a  possible  claim 
of  dower. 

a  Cases  cited,  ante,  note  3. 


BIGHT  OF  PURCHASER  TO  TAKE  TITLE  WITH  COMPENSATION.      499 

husband.29  As  to  the  rights  of  the  purchaser;  it  is  true  that  the 
right  of  dower  may  become  consummate  by  the  death  of  the  hus- 
band immediately  after  the  deed  has  been  accepted,  so  that  the 
amount  abated  from  the  purchase  money  might  prove  an  inade- 
quate indemnity;  but  that  is  the  purchaser's  concern,  and  if  he 
chooses  to  accept  a  conveyance  upon  those  terms  there  is  nothing 
of  which  he  can  complain.  The  sum  abated  from  the  purchase 
money,  as  an  indemnity  against  the  wife's  inchoate  right  of  dower, 
remains,  of  course,  in  the  hands  of  the  purchaser,  and  is  not  paid 
over  to  the  wife  in  satisfaction  of  her  interest  unless,  indeed,  she 
should  choose  to  accept  it.  The  courts  cannot  compel  her  to  part 
with  her  contingent  interest.30  If  the  vendor's  wife  refuses  to  join 
in  the  deed  through  his  fraudulent  procurement,  specific  perform- 
ance will  be  granted  the  vendee  with  indemnity  against  the  wife's 
interest.81 

In  some  of  the  States  it  has  been  held  that  the  husband  cannot 
be  compelled  to  specifically  perform  a  contract  for  the  sale  of  the 
"  homestead  "  estate  of  himself  and  wife.  This,  however,  is  not 
upon  the  ground  that  there  is  no  means  of  ascertaining  the  value 
of  the  interest;  but  for  the  reason  that  her  interest  is  vested  and 
certain,  and  cannot  be  taken  or  sold  without  her  consent."  Where 
the  right  of  dower  has  become  consummate  by  the  death  of  the 
husband,  there  can  be,  of  course,  no  doubt  of  the  right  of  the  pur- 
chaser to  a  decree  against  the  heirs  for  a  specific  performance, 
with  compensation.33  While  the  better  opinion  seems  to  be  that 
the  purchaser  may  elect  to  take  the  title  with  an  abatement  of  the 
purchase  money  as  an  indemnity  against  a  possible  claim  for 
in  the  future,  he  cannot  be  compelled  so  to  do.  It  is  well 


"Humphrey  v.  Clement,  44  111.  299. 

"In  Maine,  however,  she  is  compelled  by  statute  to  accept  a  certain  pro- 
portion of  the  purchase  money  in  satisfaction  of  her  contingent  interest, 
provided  the  sale  be  approved  by  one  of  the  Justices  of  the  Supreme  Court. 
Handy  v.  Rice,  98  Me.  504;  57  Atl.  Rep.  847. 

"Young  v.  Paul,  10  N.  J.  Eq.  401;  54  Am.  Dec.  456,  where  the  wife  assented 
to  the  sale  in  the  first  instance,  and  afterwards,  at  the  instigation  of  her 
husband,  refused  to  relinquish  her  right.  Peeler  v.  Levy,  26  N.  J.  Eq.  330. 

82  Brewer  v.  Wall,  23  Tex.  585;  76  Am.  Dec.  76;  Allison  v.  Shilling,  27 
Tex.  450;  86  Am.  Dec.  622. 

**  Springle  v.  Shields,  17  Ala.  295.  In  this  case  it  was  held  that  the  pur- 
chaser could  not  demand  a  gross  sum  as  the  present  value  of  the  dower  right, 
but  should  be  relieved  from  payment  of  one-third  of  the  value  of  the  land  at 
the  time  of  the  contract,  until  the  death  of  the  dowress. 


500  MARKETABLE    TITLE    TO    REAL    ESTATE. 

settled  that  a  purchaser  cannot  be  compelled  to  take  the  property 
with  indemnity  against  any  loss  that  may  accrue  from  a  defective 
title.34 

§  200.  EXCEPTIONS  TO  GENTTRAT.  RULE.  The  exceptions  to 
the  rule  that  the  purchaser  may  elect  to  take  such  title  as  the  ven- 
dor can  make,  with  compensation  for  defects,  are,  where  the  ven- 
dor's title  being  good  only  to  a  small  portion  of  the  estate,  e.  g.,  the 
mansion  house  and  curtilage,  the  effect  of  enforcing  the  rule  would 
be  to  leave  the  large  appurtenant  estate,  sold  with  the  mansion,  on 
the  hands  of  the  vendor  with  a  proclaimed  doubtful  title.  In  such 
a  case,  according  to  Sir  Edward  Sugden,  the  rule  does  not  apply.*6 
Neither  does  it  apply  where  the  conditions  of  sale  provide  that 
the  vendor  may  rescind  if  the  title  be  found  defective.**  It  has 
also  been  held  that  the  purchaser  cannot  have  specific  performance 
with  compensation  if  he  knew  at  the  time  the  contract  was  made 
that  the  interest  of  the  vendor  was  partial,  or  that  his  title  wag 
defective.37  This  exception,  however,  seems  not  to  have  been  recog- 

14  Post,  §  327. 

"1  Sugd.  Vend.  (8th  Am.  ed.)  480.  In  Bailey  r.  James,  11  Grat.  (VO 
468;  62  Am.  Dec.  659,  it  was  held  that  if  a  contract  for  the  sale  of  land  is 
entire,  for  a  specific  sum  of  money,  and  the  title  to  a  part  of  it  fails  from  a 
eause  of  which  both  parties  were  ignorant,  it  is  ground  for  rescinding  the 
whole  contract;  and  the  vendee  cannot  elect  to  take  the  part  to  which  th« 
title  is  good,  and  rescind  as  to  the  other  part. 

"Williams  v.  Edwards,  2  Sim.  78. 

*  Pomeroy  Sp.  Perf.  %  442.  Lucas  v.  Scott,  41  Ohio  St.  635.  Lore  T.  Camp, 
6  Ired.  Eq.  (N.  C.)  209.  James  v.  Lichfield,  L.  R.,  9  Eq.  51.  Peeler  v.  Lerj, 
•6  N.  J.  Eq.  332,  where  it  was  said :  "  Generally  compensation  will  be  denied 
where  the  party  asking  it  had  notice  at  the  time  the  contract  was  made,  that 
the  vendor  was  agreeing  for  more  than  he  could  give  or  convey,  and  it  appears 
the  vendee  has  not,  in  consequence  of  the  contract,  placed  himself  in  a  situa- 
tion from  which  he  connot  extricate  himself  without  loss.  2  Chitty  Cont. 
(llth  Am.  ed.)  1490;  Fry  on  Spec.  Perf.  §  795,  n.  2.  Nelthrop  v.  Howgate, 
1  Coll.  223.  Harnett  v.  Yielding,  2  Sch.  &.  Lef.  559.  Wiswall  v.  McGowan, 
1  Hoff.  Ch.  (X.  Y.)  131.  Thomas  v.  Dering,  1  Keen,  747.  This  rule  has  the 
support  of  the  clearest  dictates  of  justice.  It  is  unconscionable  for  one  man 
to  take  the  promise  of  another  to  do  a  particular  thing,  which  the  promisee 
knows  at  the  time  the  promise  was  made,  the  promisor  cannot  perform  except 
by  the  consent  or  concurrence  of  a  third  person,  and  then,  when  consent  or 
concurrence  is  refused  by  the  third  person  in  good  faith,  to  demand  a  strict 
and  literal  fulfillment  of  the  promise.  He  contracts  with  full  notice  of  the 
uncertainty  or  hazard  attending  the  promisor's  ability  to  perform,  and  has 
no  right,  therefore,  to  ask  the  extraordinary  aid  of  a  court  of  conscience  in 
repairing  the  loss  he  has  sustained  by  non-fulfillment  of  the  contract." 


KIOHT  OF  PUBCHASER  TO  TAKE  TITLE  WITH  COMPENSATION.       501 

nized  in  those  cases  in  which  specific  performance  in  favor  of  the 
purchaser  with  indemnity  against  an  inchoate  right  of  dower  has 
been  decreed.38  Nor  does  the  rule  apply  where,  by  reason  of  the 
purchaser's  delay  in  seeking  specific  performance  the  vendor  has 
been  placed  in  a  worse  situation  than  if  he  had  been  called  upon 
to  perform  his  contract,  at  the  time  stipulated.39  Nor  where  the 
contract  is  to  convey  the  fee  upon  a  contingency  which  has  not 
happened;  in  such  case  the  purchaser  cannot  insist  on  the  con- 
veyance of  a  less  estate,  with  abatement  of  the  purchase  money.4* 
Nor  where  the  defect  in  the  title  is  such  that  the  resulting  differ- 
ence in  value  between  the  interest  contracted  for  and  that  to  be 
conveyed  is  not  susceptible  of  computation.41  Where  the  contract 
provides  that  if  the  title  be  not  good  and  cannot  be  made  good 
within  a  specified  time  the  agreement  shall  be  at  an  end  when 
that  time  expires,  the  vendor  cannot  if  the  title  be  incapable  of 
being  perfected  within  the  time  agreed,  elect  to  take  such  title 
as  the  vendor  can  make;  for  the  contract  in  that  event  is  abso- 
lutely at  an  end.42  So,  also,  where  the  agreement  provides  that  if 
counsel  shall  be  of  the  opinion  that  the  title  is  not  marketable 
the  contract  shall  be  void,  and  counsel  reports  the  title  unmarket- 
able as  to  part  of  the  property,  the  purchaser  cannot  elect  to  take 
the  rest  with  compensation  for  defects.43 

The  right  of  the  purchaser  to  take  such  title  as  the  vendor  can 
make  is  of  course  dependent  upon  the  existence  of  a  valid  contract 
between  the  parties.  The  contract  consists  in  an  offer  to  sell  on 
the  one  part  and  an  unconditional  acceptance  on  the  other,  and 

"Ante,  "Indemnity  against  Dower,"  §  199.  And  see  Fry  Sp.  Perf.  (3d  Am. 
ed.)  §  1231,  where  it  is  said  that  the  fact  that  the  purchaser  was  from  the 
first  aware  of  objections  to  the  title,  will  not,  as  a  general  rule,  affect  his 
right  to  require  a  conveyance  with  compensation  for  defects. 

"Voorhees  v.  De  Meyer,  2  Barb.  (N.  Y.  S.  C.)  37.  Planer  v.  Eq.  Life 
Assur.  Soc.  (N.  J.  Eq.),  37  Atl.  Rep.  668. 

40  Weatherford  v.  James,  2  Ala.   170.     Here  the  vendor  agreed  to  sell  the 
interest  of  his  wife,  an   Indian  woman,   provided  he  could  obtain  authority 
from  congress.     He  failed  in  this,  and  the  purchaser  asked  that  he  be  com- 
pelled to  convey  his  life  estate  as  tenant  by  the  curtesy.     Specific  perform- 
ance was  refused. 

41  Milmoe  v.  Murphy,  56  Atl.  Rep.  292 ;  65  N.  J.  Eq.  767. 
"Post,  this  chapter;  Mackey  v.  Ames,  31  Minn.  103. 

a  Williams  v.  Edwards,  2  Sim.  78. 


502  MARKETABLE    TITLE    TO    REAL   ESTATE. 

will  not  be  deemed  complete  if  the  acceptance  be  conditioned  upon 
the  state  of  the  title,  to  be  afterwards  ascertained.  Thus,  where 
the  offer  to  sell  was  accepted  "  provided  the  title  is  perfect,"  the 
court  refused  to  compel  the  vendor  to  accept  the  purchase  monej 
and  convey  the  property  to  the  purchaser,  holding  the  contract  to 
be  incomplete.44  But  it  has  been  held  that  a  condition  in  the  offer 
stands  upon  a  different  ground  from  a  condition  in  the  acceptance. 
Thus,  where  the  vendor  proposed  that  the  purchaser  should  forfeit 
$500  on  failure  to  perform  the  contract  in  thirty-five  days,  pro- 
vided a  certain  lawyer  pronounced  the  title  good,  and  the  pur- 
chaser agreed  to  such  proposition  it  was  held  that  the  contract  was 
complete,  and  that  the  vendor  could  not  insist  that  there  was  no 
unconditional  acceptance  of  his  offer.45 

It  has  been  said  that  if,  at  the  time  of  the  contract,  the  pur- 
chaser is  fully  aware  that  the  vendor  cannot  execute  the  agree- 
ment, it  will  be  presumed  that  the  agreement  is  founded  in  mis- 
take; and  the  purchaser  cannot  insist  upon  a  performance  as  to 
the  interest  to  which  the  vendor  may  be  actually  entitled.46  The 
purchaser  seeking  specific  performance  with  compensation  for 
defects,  must  show  not  only  that  he  has  performed  or  offered  to 
perform  all  that  is  to  be  done  on  his  part,  but  that  before  the 
filing  of  his  bill,  he  had  by  notice  and  demand  given  the  vendor 
an  opportunity  to  perform  the  contract  and  make  the  appropriate 
abatement  or  compensation.  He  should  not  needlessly  involve  the 
vendor  in  the  expense  of  a  chancery  suit.47  If  the  purchaser  elect 
to  take  title  to  part  of  the  premises  with  compensation  for  part 
to  which  title  cannot  be  had,  he  must  take  the  whole  of  that  part 
to  which  the  title  is  good.  He  cannot  require  a  conveyance  of 
choice  portions,  and  reject  a  deed  which  conveys  all  that  part  to 
which  the  vendor  has  title.48 

"Corcoran  v.  White,  117  111.  118;  7  N.  E.  Rep.  525;  57  Am.  Rep.  858. 

«  Howland  v.  Bradley,  38  N.  J.  Eq.  288. 

**  1  Sugd.  Vend.  (8th  Am.  ed.)  467,  citing  Lawrenson  v.  Butler,  1  Sch.  4 
Lef.  13;  Mortlock  v.  Butler,  10  Ves.  292;  Colyer  v.  Clay,  7  Beav.  189.  Planer 
v.  Eq.  Life  Assur.  Soc.  (N.  J.  Eq.)  37  Atl.  Rep.  668.  But  see  Fry  Sp.  Perf. 
(3d  Am.  ed.)  §  1231. 

"  Bell  v.  Thompson,  34  Ala.  633;  Long  v.  Brown,  4  Ala.  626. 

44  Perkins  v.   Hadley,  4  Hayw.    (Tenn.)    148. 


BIGHT  OF  PUBCHASE  TO  TAKE  TITLE  WITH  COMPENSATION.     503 

§  201.  BIGHT  OF  VENDOR  TO  RESCIND  WHERE  THE  TITLB 
IS  DEFECTIVE.  The  purchaser  cannot,  of  course,  elect  to  take 
the  title  such  as  it  is,  if  the  vendor  has  reserved  the  right  to  rescind 
the  contract  in  case  it  should  appear  that  the  title  is  defective.4' 
But  if  the  contract  provide  that  the  purchase  money  shall  be  re- 
funded if  the  title  prove  defective,60  or  that  in  such  event  the  pur- 
chaser shall  not  be  required  to  pay  the  purchase  money,51  the 
vendor  cannot  avail  himself  thereof  to  rescind  the  contract  without 
the  consent  of  the  purchaser.  Inasmuch  as  the  purchaser  has, 
generally,  the  right  to  take  such  title  as  the  vendor  can  make,  or  to 
take  title  to  a  part  with  compensation  for  a  deficiency,  it  would 
seem  that  the  vendor  could  in  no  case  elect  to  rescind  the  contract 
on  the  ground  that  the  title  had  failed,62  unless  he  could  show  a 
mutual  mistake  of  fact  or  fraud53  on  the  part  of  the  purchaser 
Avith  respect  to  the  title,  or  unless  he  had  reserved  the  right  to 
rescind  if  the  title  should  prove  defective.  Even  though  he  reserve 

'•Mawson  v.  Fletcher,  L.  R.,  10  Eq.  212;  Woolcot  v.  Peggie,  L.  R.,  15  App. 
Cas.  42.  Where  the  parties  stipulated  for  the  removal  of  liens  within  a 
specified  time,  and  in  case  of  the  inability  of  the  vendor  to  remove  them  in 
that  time,  the  sale  to  be  rescinded,  it  was  held  that  the  vendor  was  not  en- 
titled to  rescind  by  showing  that  he  had  brought  a  suit  to  vacate  the  liens, 
when  he  knew  that  the  suit  could  not  be  determined  within  the  specified 
time,  and  when  he  might  have  removed  the  liens  by  paying  them  off.  Sykes 
v.  Robbins,  125  Fed.  Rep.  433. 

••Hale  v.  Cravener,  128  111.  408;  21  N.  E.  Rep.  534.  See,  also,  Sloane  T. 
Wells,  (111.)  30  N.  E.  Rep.  1042.  Hale  v.  Cravener,  supra,  was  distinguished 
in  Terte  v.  Maynard,  48  Mo.  App.  463,  where  the  following  proposition  was  in 
substance  laid  down:  I"f  the  contract  contains  no  distinct  and  independent 
agreement  to  convey,  and  such  agreement  as  it  does  contain  is  conditioned 
on  there  being  a  good  title,  and  the  contract  contains  a  further  provision 
that  the  agreement  shall  be  null  and  void  if  the  title  turns  out  to  be  defective 
and  cannot  be  perfected  within  a  specified  time,  the  vendor  cannot  be  held 
liable  in  damages  if  the  title  be  defective  and  cannot  be  cured  within  such 
time. 

"Roberts  v.  Wyatt,  2  Taunt.  268. 

"Rohr  v.  Kiendt,  3  W.  &  S.    (Pa.)   563;  39  Am.  Dec.  53. 

M  If  the  parties  during  their  negotiations  assume  the  existence  of  an  incum- 
brance  on  the  estate  or  of  a  defect  in  the  title,  whereby  the  vendor  is  induced 
to  sell  at  a  lower  price,  and  the  purchaser  knows  that  neither  the  incumbrance 
nor  the«defect  exists,  it  is  presumed  that  he  would  be  deemed  guilty  of  a  fraud 
upon  the  vendor  if  he  did  not  disclose  his  information.     But  in  such  a  case, 
it  has  been  held  that  the  court  would  not  rescind  the  contract,  if  the  seller 
might  easily  have  ascertained   the  facts  as  to  the  incumbrance.     Drake  v. 
Collins,  5  How.  L.   (Miss.)   253. 


504  MARKETABLE    TITLE    TO    REAL   ESTATE. 

that  right,  it  has  been  held  that  he  must  make  reasonable  efforts 
to  perfect  the  title  before  he  will  be  permitted  to  rescind.54 

In  England  it  is  customary  to  insert  in  the  common  conditions 
of  sale  a  provision  to  the  following  effect :  "  If  the  purchaser  shall 
insist  on  any  objection  or  requisition  in  respect  of  the  title  which 
the  vendor  shall  be  unable  or  unwilling  to  remove  or  comply  with, 
the  vendor  shall  be  at  liberty,  by  notice  in  writing,  to  rescind  this 
agreement."  In  a  case  in  which  there  was  a  private  right  of  way 
over  the  premises,  of  which  both  parties  were  ignorant,  it  was  held 
that  such  a  condition  entitled  the  vendor  to  rescind,  though  another 
clause  of  the  contract  provided  that  if  any  error  in  the  description 
of  the  property  be  found,  the  same  should  not  annul  the  sale,  but 
compensation  should  be  allowed  in  respect  thereof.55  If  the  con- 
tract has  been  executed  by  a  conveyance  with  covenants  of  war- 
ranty, the  vendor  cannot,  in  the  absence  of  fraud  or  mistake, 
rescind  on  the  ground  that  the  title  has  failed.  The  purchaser  has 
a  right  to  retain  the  possession  and  defeat  the  adverse  claim  if  he 
can,  or  if  evicted,  to  recover  on  the  warranty  of  the  grantor.56  But 

84  Bibb  v.  Wilson,  31  Miss.  624. 

M  Ashburner  v.  Sewell,  L.  R.,  3  Ch.  Div.  405  (1891).  We  have  seen  that  i» 
America  the  purchaser  cannot  insist  on  specific  performance  where  the  con- 
tract provides  that  the  agreement  shall  be  at  an  end  if  the  title  be  found  to 
be  not  good.  Ante,  §  201.  In  a  case  in  which  the  contract  provided  that  if 
the  vendor  should  be  unable  or  unwilling  to  remove  the  objections  to  the  title, 
he  might  annul  the  sale  and  return  the  purchaser's  deposit  without  interest 
or  costs,  notwithstanding  any  previous  negotiation  or  litigation,  it  was  held 
that  the  vendor  could  not,  for  the  purpose  of  avoiding  costs,  exercise  this 
power  after  judgment  had  been  rendered  against  him  for  the  deposit  at  the 
suit  of  the  purchaser.  In  re  Arbib,  L.  K,  1  Ch.  Div.  601  (1891). 

"Trevino  v.  Cantu,  61  Tex.  88,  the  court  saying:  "No  allegation  of  fraud 
on  the  part  of  the  purchaser  is  made,  nor  is  it  charged  that  there  was  any 
mistake  of  fact  occurring  at  the  time  of  the  conveyance  made  between  the 
parties.  It  is  averred  that  the  vendor  was  mistaken  in  supposing  that  the 
original  grantee,  under  whom  he  claimed,  had  a  good  title  from  the  State. 
Whether  this  was  a  mistake  of  fact  or  of  law  does  not  appear.  And  even  if 
the  former,  it  is  against  just  such  mistakes  that  purchasers  protect  them- 
selves by  requiring  covenants  of  warranty  from  their  vendors.  It  would  be 
the  height  of  injustice  to  allow  a  warrantor  to  be  relieved  from  an  obligation 
on  account  of  the  happening  of  a  contingency  against  which  the  obligation  was 
specially  intended  to  provide.  In  this  case  it  would  relieve  the  vendor  from 
the  payment  of  a  sum  which  he  virtually  admits  in  his  pleadings  he  justly 
owed  the  purchaser  under  the  express  terms  of  the  contract,  the  contingency 
upon  which  it  was  to  be  paid  having  occurred.  It  is  not  the  province  of 


BIGHT  OF  PURCHASER  TO  TAKE  TITLE  WITH  COMPENSATION.     505 

if  judgment  in  ejectment  be  recovered  against  the  grantee,  and  the 
grantor  satisfies  his  warranty  by  returning  the  purchase  money, 
with  interest,  to  the  grantee,  he  will  be  entitled  to  a  reconveyance 
of  the  premises.57 

The  vendor  electing  to  rescind  the  contract  where  he  has  re- 
served that  privilege,  must,  of  course,  return  the  purchase  money 
if  any  has  been  paid.58  He  cannot  maintain  an  action  to  remove 
the  cloud  on  his  title  arising  from  his  contract  with  the  purchaser 
until  he  has  returned  the  purchase  money,  or  any  obligations  which 
he  may  hold  for  the  same.59  On  rescission  of  a  contract,  each  party 
must,  as  far  as  possible,  be  placed  in  statu  quo. 

equity  to  change  the  contract  of  a  party  and  relieve  him  from  an  obligation 
fairly  undertaken,  especially  after  he  has  received  the  consideration  which 
induced  him  to  accept  it.  It  can  compel  execution  of  agreements,  but  not 
substitute  one  agreement  for  another.  Wilgus  v.  Hughes,  2  A.  K.  Marsh. 
(Ky.)  328. 

•'Williams  v.  Pendleton,  1  T.  B.  Mon.   (Ky.)    188. 

"Benson  v.  Shotwell,  87  Cal.  49;  25  Pac.  Rep.  249.  Drew  r.  Smith,  7 
Minn.  301  (231). 

"Dahl  v.  Press,  6  Minn.  89   (38). 


506  MARKETABLE    TITLE    TO    BEAL   ESTATE. 

CHAPTER  XIX. 

OF  THE  RIGHT  OF  THE  PURCHASER  TO  PERFECT  THE  TITLE. 

BY  THE  PTJBCHASE  OF  ADVERSE  CLAIMS.     §  202. 

BY  THE  DISCHARGE  OF  LIENS  OR  INCUMBRANCES.     §  203. 

SUBROGATION  OF  PURCHASER.     §  204. 

§  202.  BY  THE  PURCHASE  OF  ADVERSE  CLAIMS.  The  pur- 
chaser may  always  apply  the  unpaid  purchase  money  to  the  acquisi- 
tion of  a  valid,  outstanding,  paramount  title  to  the  land.1  But  he 
cannot  use  the  title  so  acquired  to  defeat  the  vendor's  claim  to  so 
much  of  the  purchase  money  as  may  remain  unexpended  in  his 
hands,2  unless  he  has  been  legally  evicted,  and  has  repurchased 

'Corbally  v.  Hughes,  59  Ga.  493.  Hill  v.  Samuel,  31  Miss.  306.  Ash  T. 
Holder,  36  Mo.  163.  It  is  said  in  this  case  that  the  rule  is  different  where  a 
conveyance  has  been  made  "  because  then  the  vendee  owes  the  vendor  no  faith 
or  allegiance,  but  holds  adversely  to  him  and  all  the  world." 

*1  Warv.  Vend.  §§  13,  14;  1  Sugd.  Vend.  (8th  Am.  ed.)  533  (355),  where 
it  is  said :  "  If  a  right  be  outstanding  in  a  third  person,  which  the  purchaser 
relies  on  as  an  objection  to  the  title,  and  then  purchases  the  interest  for  his 
own  benefit,  the  court  will  not  permit  him  to  avail  himself  of  the  purchase 
against  the  vendor,  but,  allowing  him  the  price  paid  for  it,  will  compel  him 
to  perfonr  his  original  contract."  Citing  Murrell  v.  Goodyear,  21  Giff.  51 ; 
affd.,  1  DeG.,  F.  &  J.  432 ;  Lawless  v.  Mansfield,  1  Dru.  &  War.  557.  Harper 
v.  Reno,  1  Freem.  Ch.  (Miss.)  323;  Hill  v.  Samuel,  31  Miss  305;  Hardeman 
v  Cowan,  10  Sm.  &  M.  (Miss.)  487;  Champlin  v.  Dotson,  13  Sm.  &  M.  (Miss.) 
554;  53  Am.  Dec.  102;  Harkreader  v.  Clayton,  56  Miss.  383.  Mitchell  v. 
Barry,  4  Hayw.  (Tenn.)  136;  Meadows  v.  Hopkins,  19  Tenn.  (Meigs)  181; 
33  Am.  Dec.  140,  and  Tennessee  cases  there  cited.  Bond  v.  Montague  (Tenn. 
Ch.  App.),  54  S.  W.  Rep.  65.  Lewis  v.  Boskins,  27  Ark.  61.  Strong  v.  Waddell, 
56  Ala.  471;  Mumford  v.  Pearce,  70  Ala.  452.  Beall  v.  Davenport,  48  Ga. 
165;  15  Am.  Rep.  656.  Wilkinson  v.  Green,  34  Mich.  221.  Curran  v.  Banks, 
123  Mich.  594;  82  N.  W.  Rep.  247.  Cowdry  v.  Cuthbert,  71  Iowa,  733;  29  N. 
W.  Rep.  798,  where  the  purchaser  bought  in  a  tax  title  under  a  tax  sale 
made  prior  to  his  purchase.  Roller  v.  Effinger,  (Va.)  14  S.  E.  Rep.  337. 
Morgan  v.  Boone,  4  Mon.  (Ky.)  291,  298;  16  Am.  Dec.  153.  Cox  v.  Johnson, 
18  Ky.  Law  Rep.  516;  37  S.  W.  Rep.  154;  Fuson  v.  Lambdin,  23  Ky.  Law 
Rep.  2245;  66  S.  W.  Rep.  1004.  Wood  v.  Perry,  1  Barb.  (N.  Y.)  115,  134; 
Foster  v.  Herkimer  Mfg.  Co.,  12  Barb.  (N.  Y.)  352.  Renshaw  v.  Gans,  7  Pa. 
St.  117.  Ramsour  v.  Shuler,  2  Jones  Eq.  (N.  C.)  487,  a  case  in  which  the 
purchaser  got  in  the  outstanding  title  for  a  trifling  sum,  and  which  well  il- 
lustrates the  justice  of  the  rule.  There  was  a  conveyance  in  this  case.  The 
rule  stated  in  the  text  is  the  same,  whether  the  contract  be  executory  or  exe- 
cuted. See  cases  cited,  ante,  §  168,  and  Rawle  Covts.  (5th  ed. )  §  192.  Baker 
v.  Corbett,  28  Iowa,  317.  The  purchaser  cannot  resist  the  payment  of  the  pur- 


OF  THE  EIGHT  OF  THE  PURCHASER  TO  PERFECT  THE  TITLE.       507 

the  property  under  a  new  and  distinct  title.3  Of  course  he  may 
rescind  the  contract,  surrender  the  possession,  and  then  acquire  the 
adverse  title  and  set  it  up  against  the  vendor.4  But  for  obvious 
reasons  he  cannot  do  this  where  he  elects  to  affirm  the  contract. 
The  money  paid  by  him  to  the  adverse  claimant  will  be  treated,  for 
the  purpose  of  this  question,  as  money  paid  to  the  use  and  benefit 
of  the  vendor.  Hence,  it  follows  that  the  purchaser  cannot  claim 
the  benefit  of  the  title  so  acquired,  except  to  the  extent  of  the 
amount  disbursed  by  him  to  the  adverse  claimant,  such  amount  to 
be  availed  of  as  a  set-off  pro  tanto  to  the  unpaid  purchase  money,  if 
any.5  A  familiar  illustration  of  these  principles  is  afforded  by  the 

chase  money  on  the  ground  that  the  vendor  failed  to  procure  a  conveyance 
from  a  third  person  having  an  interest  in  the  land,  when  he  himself  (the  pur- 
chaser) has  procured  a  conveyance  from  such  person.  Calkins  v.  Williams, 
36  111.  App.  500.  A  purchaser  at  a  judicial  sale,  who  is  permitted  to  retain 
a  part  of  the  purchase  money  with  which  to  pay  off  liens  on  the  land,  cannot 
become  an  assignee  of  the  liens,  or  subrogated  to  the  benefit  thereof  further 
than  is  necessary  for  his  indemnity.  Menifee  v.  Marye,  (Va.)  4  S.  E.  Rep. 
726.  In  Louisiana,  the  fact  that  the  purchaser  buys  in  the  premises  at  a  sale 
under  an  incumbrance,  does  not  affect  his  right  to  recover  back  the  purchase 
money  paid  his  vendor.  Boyer  v.  Amet,  4  La.  Ann.  721. 

8  Martin  v.  Atkinson,  7  Ga.  228 ;  50  Am.  Dec.  403.    Post,  §  219. 

'Hill  v.  Samuel,  31  Miss.  305;  Murphree  v.  Dogan,  (Miss.)  17  So.  Rep. 
231.  Grundy  v.  Jackson,  1  Litt.  (Ky.)  13.  Wilson  v.  Wetherby,  1  Nott  & 
McC.  (S.  C.)  373.  Thredgill  v.  Pintard,  12  How.  (U.  S.)  24,  31,  dictum; 
WiJHson  v.  Watkins,  7  Wh.  (U.  S.)  53.  If  the  title  fail  and  the  purchaser 
repurchases  from  the  real  owner  and  enters  under  the  title  so  acquired,  which 
is  hostile  to  that  of  the  vendor,  the  latter  cannot  compel  specific  performance 
of  the  contract.  Bensel  v.  Gray,  80  N.  Y.  517.  Stephens  v.  Black,  77  Pa.  St. 
138.  In  Hanks  v.  Pickett,  27  Tex.  97,  it  was  held  that  a  purchaser  who  de- 
clines to  do  an  act  necessary  to  perfect  his  vendor's  title,  and  which  it  is  his 
duty  to  do,  cannot  recover  damages  against  his  vendor  for  failure  to  make 
title.  In  this  case  there  was  an  implied  undertaking  that  the  purchaser 
should  appear  before  the  county  clerk  and  furnish  evidence  that  he  had  occu- 
pied the  land  as  a  pre-emption  claim  for  a  certain  number  of  years.  See 
Walker  v.  Ogden,  1  Dana  (Ky.),  247,  where  it  was  said  that  there  might  be 
cases  where  the  purchaser  might  in  equity  avail  himself  of  a  paramount  title 
ncquired  from  a  stranger,  as  against  his  vendor. 

In  Shelly  v.  Mikkelson,  (N.  Dak.)  63  N.  W.  Rep.  210,  the  vendor  aban- 
doned the  contract  and  sold  and  conveyed  the  premises  to  a  stranger,  and  the 
original  vendee  then  bought  in  the  stranger's  title  so  acquired,  and  it  was 
held  that  he  might  set  up  the  same  against  the  vendor  when  sued  upon  the 
original  purchase-money  notes. 

*  An  exception  to  this  rule  exists  where  the  outstanding  title  acquired  is 
that  of  the  State.  Ante,  §  168. 


508  MARKETABLE    TITLE    TO    REAL   ESTATE. 

rule  that  a  purchaser  from  one  who  holds  under  a  void  patent  can- 
not enter  and  locate  the  land  for  himself,  and  then  seek  to  rescind 
his  contract  and  avoid  the  payment  of  the  purchase  money.6  Of 
course  the  legal  title  acquired  by  the  purchase  from  the  adverse 
claimant  is  not  affected  by  the  relations  existing  between  the  vendor 
and  vendee.  Equity  may  compel  the  purchaser  to  pay  the  vendor 
the  balance  justly  coming  to  him  under  the  contract,  but  cannot 
divest  the  purchaser  of  the  title  fairly  acquired.7  Nor  does  the  pur- 
chase of  an  outstanding  title  amount  to  an  election  on  the  part  of 
the  purchaser  to  rescind  the  contract,  nor  deprive  him  of  his  rights 
thereunder  against  the  vendor.8 

In  practice  the  application  for  specific  performance  where  the 
purchaser  has  acquired  the  adverse  title,  is  usually  accompanied  by 
a  prayer  for  an  injunction  against  proceedings  to  collect  the  pur- 
chase money.  Indeed,  the  acquisition  of  the  adverse  title  is  more 
frequently  availed  of  as  a  defense  to  an  action  for  the  purchase 
money  than  in  any  other  way ;  but  of  course  there  may  be  cases  in 
which  it  may  be  to  the  purchaser's  interest  to  seek  affirmative  relief 
in  equity.  In  either  case  the  principle  upon  which  relief  is  afforded 
the  purchaser  is  the  same. 

The  purchaser  will  not  be  entitled  to  an  abatement  of  the  pur- 
chase money  on  account  of  an  outstanding  title  which  he  buys  in, 
unless  he  shows  that  such  title  was  necessary  to  protect  his  own,  and 
was  one  to  which  he  must  have  yielded  ;9  in  other  words,  the  trans- 

•Searcy  v.  Kirkpatrick,  1  Overt.  (Tenn.)  421.  Galloway  v.  Finley,  12  Pet. 
(U.  S.)  264,  where  held  also  that  he  could  not  be  allowed  for  expenses  of  the 
entry  and  survey,  the  same  having  been  made  for  the  purpose  of  defeating  his 
Tender's  title.  Thredgill  v.  Pintard,  12  How.  (U.  S.)  24.  Gallagher  v.  Wither- 
ington,  29  Ala.  420.  Frix  v.  Miller,  115  Ala.  476;  22  So.  Rep.  146.  Hollo- 
way  v.  Miller,  84  Miss.  776;  36  So.  Rep.  531.  See  post,  "Estoppel,"  §  219, 
and  ante,  §  168. 

7  Language  of  AGNEW,  J.,  in  Thompson  v.  Adams,  55  Pa.  St.  479. 

8  Getty  v.  Peters,  82  Mich.  661 ;  46  N.  W.  Rep.  1036,  where  it  was  held  that 
one  who  buys  in  land  at  a  tax  sale  to  protect  himself  as  purchaser  is  not, 
when  sued  in  ejectment  by  the  vendor,  forced  to  rely  on  the  tax  title,  and 
estopped  from  claiming  under  the  contract  of  sale. 

•Nicholson  v.  Sherard,  10  La.  Ann.  533.  In  Lee  v.  Porter,  5  Johns.  Ch.  (N. 
Y.)  268,  the  chancellor  doubted  whether  relief  should  be  given  the  purchaser 
in  consequence  of  an  outstanding  claim  which  he  for  greater  caution  chooses 
to  buy  in  before  it  has  received  judicial  sanction,  in  a  suit  to  which  all  per- 
sons in  interest  were  parties,  or  were  called  upon  to  assert  their  title. 


OF  THE  RIGHT  OF  THE  PURCHASER  TO  PERFECT  THE  TITLE.       509 

action  must  have  been  such  as  would  amount  to  a  constructive  evic- 
tion.]C  In  a  case  in  which  the  purchaser  bought  in  an  adverse 
claim,  and  it  did  not  appear  whether  the  title  so  acquired  wa?  para- 
mour t  or  not,  it  was  held  that  the  court  erred  in  decreeing  against 
the  purchaser  without  referring  the  case  to  a  commissioner  to  in- 
quire into  the  validity  of  the  adverse  claim.11  The  price  paid  by 
the  purchaser,  however,  to  obtain  the  outstanding  title  is  not  con- 
clusive of  the  value  of  that  title,  and  it  devolves  upon  him  to  show 
that  such  price  was  not  in  excess  of  the  value  of  the  outstanding 
interest.  He  will  receive  credit  on  the  purchase  money  only  for 
the  actual  value  of  the  adverse  title  so  acquired.12  Where  the  pur- 
chaser buys  in  an  inchoate  right  of  dower,  he  will  not  be  allowed 
the  sum  so  expended,  unless  he  shows  that  such  sum  was  the  fair 
value  of  the  right.13 

In  America  it  is  a  common  practice  among  conveyancers  to  pro- 
cure him  whose  outstanding  interest  has  been  gotten  in  to  join  in 
the  conveyance,  which,  as  to  such  party,  is  usually  a  quit  claim  or 
release,  few  persons  under  such  circumstances  being  willing  to  con- 
vey with  general  warranty.  This,  perhaps,  is  all  that  is  needed 
where  the  interest  is  present  and  subsisting.  If,  however,  the  pur- 
chaser desires  to  guard  against  a  future,  anticipated  or  prospective 
interest  in  the  party,  he  should  require  either  a  conveyance  with 
general  warranty,  or  one  in  which  the  intent  to  convey  an  estate  of 
a  particular  description  is  clearly  manifested,  otherwise  he  may 
lose  the  estate,  under  the  general  rule  that  a  quit  claim  or  release 
is  insufficient  to  pass  an  after-acquired  estate.14 

§  203.  BY  THE  DISCHARGE  OF  LIENS  AND  INCTJMBBANCES. 
The  purchaser  may  at  all  times  apply  the  unpaid  purchase  money 
to  the  discharge  of  valid  incumbrances  binding  the  land  in  his 
hands,  and  which  his  vendor  is  bound  to  remove.15  The  existence 

'•Ante,  §  150. 

"Smith  v.  Parsons,  33  W.  Va.  644;  11  S.  E.  Rep.  68. 

"Pate  v.  Mitchell,  23  Ark.  590;  79  Am.  Dec.  114. 

"McCord  v.  Massey,  155  111.  123;  39  N.  E.  Rep.  592. 

"Post,  "Estoppel,"  §  218. 

15  2  Sugd.  Vend.  (8th  Am.  ed.)  201  (555).  Smith  v.  Pettus,  1  Stew.  &  P. 
(Ala.)  107.  Owens  v.  Salter,  38  Pa.  St.  211,  where  the  purchaser  paid  off 
certain  tax  liens.  Smith's  Appeal,  177  Pa.  St.  437;  35  Atl.  680;  Forthman 
v.  Deters,  206  111.  159;  69  N.  E.  Rep.  97.  Washer  v.  Brown,  5  N.  J.  Eq.  81. 


510  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

of  an  incumbrance  on  the  premises  is  no  ground  for  rescission  so 
long  as  it  may  be  discharged  with  the  unpaid  purchase  money.18 
Having  paid  off  the  incumbrance,  the  purchaser  may,  of  course, 
demand  a  specific  performance  of  the  contract."  Such  applica- 
tions, however,  are  infrequent  except  in  connectkm  with  suits  to 
stay  the  collection  of  the  purchase  money.  Or  in  a  suit  by  him- 
self for  specific  performance,  the  purchaser  may  have  the  purchase 
money  in  his  hands  applied  to  the  discharge  of  incumbrances.18  In 
Alabama  it  has  been  held  that  the  amount  so  disbursed  by  the  pur- 
chaser cannot  avail  him  as  a  set-off  in  an  action  for  the  purchase 
money,  nor  as  a  defense  under  the  plea  of  failure  of  consideration, 
and  that  his  remedy  is  exclusively  in  equity.19  But  the  rule  is 
doubtless  otherwise  in  the  States  in  which  equitable  defenses  may 
be  made  at  law. 

The  purchaser  may  not  only  apply  the  unpaid  purchase  money 
to  the  discharge  of  valid  incumbrances  of  which  he  has  notice,  but 
he  is  required  so  to  do ;  and  he  cannot  defeat  an  action  for  the  pur- 
chase money  on  the  ground  of  a  sale  and  eviction  under  an  incum- 
brance, which  he  might  have  paid  off  with  the  purchase  money.20 
This  rule,  however,  does  not  apply  where  the  purchase  money  had 
not  become  due  at  the  time  of  sale  under  the  incumbrance,21  nor 
where  the  vendor  has  expressly  agreed  to  pay  off  the  incumbrance.22 
In  a  case  in  which  the  vendor  refused  to  remove  the  incumbrance 

In  the  English  practice  the  purchaser  at  a  judicial  sale  may  apply  to  the 
court  for  leave  to  pay  off  incumbrances  on  the  premises,  appearing  from  a 
report  in  the  cause,  and  pay  the  residue  of  the  purchase  money  into  the  bank. 
Where  the  incumbrance  does  not  appear  on  the  report  the  leave  will  not  be 
granted  if  any  of  the  parties  object  or  are  incompetent  to  consent.  1  Sugd. 
Vend.  (8th  Am.  ed.)  148. 

"Greenby  v.  Cheevers,  9  Johns.  (N.  Y.)  126.   Irvin  v.  Bleakly,  67  Pa.  St.  24. 

"A  purchaser  may  buy  in  the  land  at  a  foreclosure  sale  under  proceedings 
against  hia  vendor,  and  having  thus  extinguished  the  incumbrance,  require 
specific  performance  by  the  vendor.  Berry  v.  Walker,  9  B.  Mon.  (Ky.)  464. 

"As  in  Washer  v.  Brown,  1  Halst.    (N.  J.  Eq.)   81. 

19  Cole  v.  Justice,  8  Ala.  793. 

MMellon's  Appeal,  32  Pa.  St.  121;  Clark  v.  Clark,  1  Grant  (Pa.),  33; 
Harper  v.  Jeffries,  5  Whart.  (Pa.)  26;  McGinnis  v.  Noble,  7  W.  &  S.  (Pa.) 
454;  Garrard  v.  Lautz,  2  Jones  (Pa.)  186. 

"Dentler  v.  Brown,  1  Jones  (Pa.),  295;  McGinniss  v.  Noble,  7  W.  &  S. 
(Pa.)  454. 

**  Stevenson  v.  Mathers,  67  Iowa,  123. 


OF  THE  BIGHT  OF  THE  PUECHASEB  TO  PEBFECT  THE  TITLE.       511 

and  told  the  purchaser  if  he  wanted  his  rights  to  sue  for  them, 
it  was  held  that  there  was  no  obligation  on  the  part  of  the  pur- 
chaser to  apply  a  part  of  the  unpaid  purchase  money  to  the 
discharge  of  the  incumbrance,  and  that  he  was  entitled  to  recover 
his  deposit  and  expenses.23  If  the  purchaser  pays  money  generally 
to  one  having  an  incumbrance  on  the  premises,  and  also  an  un- 
secured debt  against  the  vendor,  the  money  will  be  held  to  have 
been  paid  in  discharge  of  the  incumbrance.24 

The  purchaser  takes  the  risk  of  the  validity  of  the  incumbrance 
which  he  removes  and  of  the  liability  of  the  vendor  therefor.26  In 
a  case,  however,  in  which  the  vendor  had  received  an  indemnity 
from  his  vendor  against  a  supposed  incumbrance,  and  upon  a  resale 
of  the  property  agreed  with  his  vendee  to  remove  the  incumbrance, 
it  was  held  that  he  was  estopped  from  denying  the  validity  of  the 
incumbrance  as  against  such  vendee  who  had  removed  it.26 

The  purchaser  must  exercise  great  caution  in  paying  off  incum- 
brances  constituting  securities  for  the  purchase  money  and  which 
pass  with  a  transfer  of  instruments  evidencing  the  purchase-money 
debt,  for  example,  the  transfer  of  negotiable  notes  secured  by 
purchase-money  mortgage  or  deed  of  trust.  In  such  a  case,  a  sub- 
purchaser  taking  the  property  charged  with  a  purchase-money 
mortgage  would  probably  deem  himself  safe  in  discharging  the 
mortgage  and  holding  it  against  his  vendor.  If,  however,  the 
mortgage  was  made  to  secure  negotiable  notes  for  the  purchase 
money,  and  these  have  been  before  maturity  transferred  to  a  pur- 
chaser for  value,  the  mortgage  might  still  be  enforced  in  favor  of 
the  transferee,  notwithstanding  payment  in  full  by  the  sub-pur- 
chaser to  the  original  vendor,  that  is,  the  mortgagee  and  payee  of 
the  notes.27 

It  has  been  held  that  a  purchaser  of  lands  with  notice  of  a  claim 
against  the  land,  will,  if  he  pays  the  purchase  money  to  the  vendor, 

M  Green  v.  Hernz,  37  N.  Y.  Supp.  887 ;  2  App.  Div.  255. 
24  2  Sugd.  Vend.   (8th  Am.  ed.)   201    (555),  citing  Brett  v.  Marsh,  1  Vern. 
468;  Hayward  v.  Lomax,  1  Vern.  24;  Peters  v.  Anderson,  5  Taunt.  596. 
"Ante,  §§  133,  150. 
"Hardigree  v.  Mitchum,  51  Ala.  151. 
27  Windle  v.  Bonebrake,  23  Fed.  Rep.  165.    McLain  v.  Coulter,  5  Ark.  13. 


512  MABXETABLE   TITLE    TO    BEAL    ESTATE. 

be  liable  to  the  holder  of  the  claim,  to  the  extent  of  the  purchase 
money  remaining  unpaid  when  he  received  notice.28 

The  purchaser  can  have  credit  on  the  purchase  money  for  no 
more  than  the  amount  he  actually  pays  out  to  remove  the  in- 
cumbrance.29 

§  204.  SUBROGATION  OF  PURCHASER.  The  purchaser  will 
not  only  be  entitled  to  credit  on  the  purchase  money  for  incum- 
brances  or  liens  which  he  discharges,  but  he  will  be  subrogated  to 
all  the  rights,  remedies  and  priorities  of  the  incumbrancer  against 
third  persons.30  As  against  the  vendor,  however,  as  before  ob- 
served, he  can  only  claim  reimbursement  to  the  extent  of  the 
amount  actually  paid  out  by  him  in  discharge  of  the  incumbrance.31 
But  to  that  extent  he  will  be  subrogated  to  the  benefit  of  the  lien 
or  incumbrance  as  against  the  vendor  as  well  as  third  persons.  And 
inasmuch  as  the  doctrine  of  subrogation  is  the  creature  of  equity 
and  in  no  wise  dependent  upon  or  arising  from  contract  between 
the  parties,  and  is  enforced  in  favor  of  any  person  wh.o  is  compelled 
to  discharge  a  lien  or  incumbrance  for  his  protection,  no  reason  is 
perceived  why  the  purchaser  would  not  be  entitled  to  the  benefit  of 

*  Green  v.  Green,  41  Kans.  472;  21  Pac.  Rep.  586,  citing  2  Story  Eq.  (llth 
ed.)  p.  829;  Bush  v.  Collins,  35  Kans.  535;  11  Pac.  Rep.  425,  personal  prop- 
erty. Dodson  v.  Cooper,  37  Kans.  346;  15  Pac.  Rep.  200;  Burke  v.  Johnson, 
37  Kans.  337;  15  Pac.  Rep.  204.  Hardin  v.  Harrington,  11  Bush  (Ky.),  367. 

29 2  Sugd.  Vend.  (8th  Am.  ed.)  202  (555),  and  cases  there  cited.  In  Bryan 
r.  Salyard,  3  Grat.  (Va.)  188,  a  purchaser  who  was  directed  by  decree  to  pay 
a  sum  of  money  to  a  third  person  out  of  the  purchase  money,  and  who  ob- 
tained a  compromise  of  the  decree,  was  allowed  only  the  sum  actually  paid 
by  him,  as  a  credit  on  the  purchase  money. 

*°  Sheld.  Subrogation,  §  28,  et  seq.  See  cases  collected,  24  Am.  &  Eng. 
Encyc.  L.  253,  et  seq.  Downer  v.  Fox,  20  Vt.  388.  Champlin  v.  Williams,  9 
Pa.  St.  341.  Furnold  v.  Bank,  44  Mo.  336.  Wall  v.  Mason,  102  Mass.  313. 
Peet  v.  Beers,  4  Ind.  46;  Troost  v.  Davis,  31  Ind.  34;  Spray  v.  Rodman,  43 
Ind.  225.  The  purchaser  cannot,  by  virtue  of  the  doctrine  of  subrogation, 
enforce  against  the  real  owner  an  incumbrance,  which  for  any  reason,  the 
incumbrancer  himself  could  not  have  so  enforced.  Brown  v.  Connell,  (Ky. ) 
12  S.  W.  Rep.  267. 

81  A  vendee  purchasing  his  vendor's  title  at  a  sheriff's  sale  cannot  withhold 
the  unpaid  purchase  money  from  his  vendor,  except  what  he  expended  in  buy- 
ing in  the  title.  Tod  v.  Gallaher,  16  Serg.  &  R.  (Pa.)  261;  16  Am.  Dec.  571; 
Harper  v.  Jeffries,  5  Whart.  (Pa.)  26;  McGinniss  v.  Noble,  7  W.  &  S.  (Pa.)' 
454;  Harrison  v.  Soles,  1  Pa.  St.  393;  Renshaw  v.  Gans,  2  Pa.  St.  117; 
Dentler  v.  Brown,  11  Pa.  St.  295;  Garrard  v.  Lantz,  12  Pa.  St.  186;  Mel- 
Ion's  Appeal,  32  Pa.  St.  121. 


OF  THE  EIGHT  OF  THE  PUBCHASEE  TO  PEEFECT  THE  TITLE.       513 

a  lien  which  he  discharges,  though  he  had  accepted  a  conveyance 
without  covenants  for  title.32 

The  purchase  money  paid  by  one  who  purchases  at  a  sale  made 
to  enforce  .a  judgment  or  other  lien  or  security  upon  land,  goes  to 
the  discharge  of  the  judgment  or  security.  If,  therefore,  the  sale 
be  void  by  reason  of  any  error,  imperfection  or  irregularity  in  the 
proceedings  in  which  such  judgment  is  obtained,  or  sale  made,  the 
purchaser  will  be  subrogated  to  the  benefit  of  such  judgment  or 
other  lien,  and  by  proper  proceedings  for  that  purpose,  may  enforce 
the  same,  for  his  own  reimbursement.33 

The  doctrine  of  subrogation  is  enforced  only  in  courts  of  equity ; 
hence,  he  who  seeks  this  form  of  relief  must  himself  do  equity. 
Therefore,  it  has  been  held  that  a  subsequent  purchaser,  with  notice 
of  the  prior  purchase,  who  pays  off  a  lien  on  the  land,  will  not  be 
substituted  to  its  benefit,  so  as  to  deprive  the  first  purchaser  of  his 
bargain.34  If,  however,  he  receives  notice  after  he  has  paid  the 
purchase  money,  no  reason  is  perceived  why  he  should  not  be  per- 
mitted to  protect  himself  by  acquiring  the  rights  of  outstanding 
incumbrancers. 

**  Post,  ch.  27,  §  267. 

"Freeman  Void  Jud.  Sales,  §  50.  Valle  v.  Fleming,  29  Mo.  152;  77  Am. 
Dec.  557;  Henry  v.  McKerlie,  78  Mo.  416.  Hudgin  v.  Hudgin,  6  Grat.  (Va.) 
320;  52  Am.  Dec.  124.  Blodgett  v.  Hitt,  29  Wis.  184.  Shepherd  v.  Mclntire, 
5  Dana  (Ky.),  574;  McLaughlin  v.  Daniel,  8  Dana  (Ky.),  1&3.  French  T. 
Orenet,  56  Tex.  273. 

"Bates  v.  Swiger,  (W.  Va.)  21  S.  E.  Rep.  874. 

33 


CHAPTER  XX. 

OF  SPECIFIC  PERFORMANCE  OF  COVENANTS  FOR  TITLE. 

GENERAL  RULES.     §  205. 

COVENANT  AGAINST  INCUMBRANCES.     §  206. 

CONVEYANCE  OF  AFTER-ACQUIRED     ESTATE.     §  207. 

§  205.  GENERAL  RULES.  Specific  performance  of  an  execu- 
tory contract  for  the  sale  of  lands  consists,  on  the  part  of  the 
vendor,  in  the  delivery  of  possession  to  the  purchaser  and  inHhe 
execution  of  a  proper  deed,  conveying  such  an  estate  as  the  contract 
requires ;  and  on  the  part  of  the  vendee,  in  the  payment  of  the 
purchase  money  and  the  acceptance  of  such  conveyance.  Applica- 
tions to  equity  for  specific  performance  are  principally  confined  to 
cases  in  which  the  contract  remains  executory,  but  the  jurisdiction 
is  also  exercised  to  compel  the  grantor  to  perform  certain  of  his 
covenants  for  title. 

The  covenant  for  further  assurance  is,  in  substance,  that  the 
grantor,  his  heirs,  etc.,  will  at  any  time  and  upon  any  reasonable 
request,  at  the  charge  of  the  grantee,  his  heirs,  etc.,  do,  execute,  or 
cause  to  be  done  or  executed,  all  such  further  acts,  deeds  and 
things,  for  the  better,  more  perfectly,  and  absolutely  conveying  and 
assuring  the  said  lands  and  premises,  etc.,  as  by  the  grantee,  his 
heirs,  etc.,  his  or  their  counsel  in  the  law,  shall  be  reasonably 
devised,  advised  or  required.1  This  language  clearly  embraces  the 
removal  of  incumbrances  upon  the  premises  which  may  be  discov- 
ered after  the  purchase  money  has  been  fully  paid;  and  it  has 
frequently  been  held  that  the  covenantor  may,  thereunder,  be 
compelled  to  pay  off  and  discharge  all  such  charges  on  the  land.2  It 
has  been  said,  however,  that  if  the  other  covenants  in  the  deed  are 
special  or  limited,  the  grantor  can  be  compelled  to  remove  only 

*Va.  Code,   1887,   §  2451. 

*Sugd.  Vend.  (8th  Am.  ed.)  285;  Rawle  Covts.  (5th  ed.)  §§  104,  362. 
Stock  v.  Aylward,  8  Ir.  Ch.  429.  Nelson  v.  Harwood,  3  Call  (Va.),  342. 
McClaugherty  v.  Croft,  43  W.  Va.  270;  27  S.  E.  Rep.  246. 


OF  SPECIFIC  PERFORMANCE  OF  COVENANTS  FOR  TITLE.       515 

such  incumbrances  as  may  have  been  created  by  himself  or  those 
claiming  under  him.3 

The  nature  and  extent  of  the  "  further  assurance  "  will  of  course 
be  governed  by  that  of  the  estate  originally  conveyed.  The  cove- 
nantor cannot  be  compelled  to  assure  to  the  covenantee  a  greater 
estate  than  that  concerning  which  the  covenant  was  made.4  It  has 
been  said  that  the  jurisdiction  of  equity  in  the  specific  performance 
of  covenants  for  title  has  been  exercised  in  marshalling  the  assets  of 
a  bankrupt's  or  decedent's  estate.5  This,  however,  seems  to  involve 
no  principle  of  specific  performance,  unless  specific  performance 
consist  in  the  payment  of  damages  for  a  breach  of  covenant,  but 
rather  to  consist  in  the  enforcement  in  equity  of  a  legal  liability  of 
rthe  heirs  or  estate  of  the  covenantee  upon  his  covenants.6 

The  doctrine  of  specific  performance  has,  of  course,  no  applica- 
tion to  the  covenants  of  warranty,  of  seisin,  of  good  right  to  con- 
vey, and  for  quiet  enjoyment.  There  is  nothing  for  the  covenantor 
to  do  in  lieu  of  payment  of  damages  for  the  breach  of  these 
covenants.7 

By  analogy  to  the  rule  that  a  covenantee  paying  off  incum- 
brances upon  the  premises  cannot  recover  damages  against  the  cove- 
nantor in  excess  of  the  purchase  money  and  interest,  it  would 
probably  be  held  that  the  latter  could  not  be  compelled  to  remove 
an  incumbrance  which  exceeded  the  purchase  money  and  interest.8 
It  has  been  so  held  where  the  conveyance  contained  a  covenant  of 
warranty,  but  no  covenant  against  incumbrances.9 

'Rawle  Covts.  §§  105,  363,  citing  Armstrong  v.  Darby,  26  Mo.  517,  which, 
however,  was  not  a  suit  for  specific  performance,  but  an  action  in  which  the 
plaintiff  sought  to  recover  for  an  incumbrance  on  the  premises  which  he  had 
paid  off,  after  requesting  the  covenantor  so  to  do,  which  request  was  refused. 

4  Rawle  Covts.  (5th  ed.)  §§  104,  363.  Davis  v.  Tollemache,  2  Jur.  (N.  S.) 
1181,  where  it  was  said:  "The  utmost  extent  to  which  the  court  has  gone, 
•with  reference  to  covenants  for  further  assurance,  has  been  to  extend  their 
operation  to  that  very  estate  and  interest  which  are  conveyed  by  the  deed." 

•Rawle  Covts.   (5th  ed.)   §  364. 

•As  in  Higgins  v.  Johnson,  14  Ark.  309;  60  Am.  Dec.  544.  Haffey  v. 
Birchetts,  11  Leigh  (Va.),  83. 

TTallman  v.  Green,  3  Sandf.   (N.  Y.)  437.    Tuite  v.  Miller,  10  Ohio,  382. 

•Ante,  §  131. 

•East  Tenn.  Nat.  Bank  v.  First  Nat.  Bank,  7  Lea  (Tenn.),  420.  In  this  case 
the  purchaser  took  a  conveyance  with  warranty,  and  afterward  discovered 
that  the  vendor  had  fraudulently  concealed  the  existence  of  a  prior  vendor's 


516  MARKETABLE    TITLE    TO    REAL   ESTATE. 

§  206.  COVENANT  AGAINST  INCUMBRANCES.  Whether  under 
a  covenant  against  incumbrances  alone,  the  grantor  can  in  equity  be 
compelled  to  remove  an  incumbrance  on  the  premises,  seems  to  be 
a  doubtful  question.  Mr.  Rawle  expresses  his  opinion  in  the 
negative,  conceiving  that  in  equity,  as  at  law,  a  covenantee  who  has 
suffered  no  actual  damages  from  the  presence  of  the  incumbrance, 
is  entitled  to  no  relief.10  There  are  cases,  however,  which  hold  the 
affirmative  of  this  question,  and,  to  our  mind,  establish  the  better 
doctrine.11  There  seems  to  be  little  reason  or  justice  in  a  rule 
which,  after  the  purchaser  has  exhausted  all  his  resources  in  pay- 
ing for  the  property,  requires  him  to  submit  to  an  eviction  under 
an  incumbrance  which  he  cannot  satisfy,  and  turns  him  round  to 
his  action  upon  the  covenant,  which,  for  many  obvious  reasons, 
may  prove  unavailing,  or,  at  least,  inadequate  for  his  relief." 

§  207.  CONVEYANCE  OF  AFTER-ACQUIRED  ESTATE.  We 
shall  see  that,  as  a  general  rule,  the  effect  of  a  conveyance  with 
covenants  for  title,  and  in  some  cases  without  covenants,  if  an 
intent  to  pass  an  estate  of  a  particular  description  appear,  is  to 

lien  on  the  premises  much  exceeding  the  consideration  money.  It  was  held 
that  he  was  entitled  to  a  rescission  of  the  contract  on  the  ground  of  fraud, 
but  that  there  being  no  covenant  against  incumbrances  the  grantor  could  not 
be  required  to  remove  the  vendor's  lien. 

"Rawle  Covts.  for  Title   (5th  ed.),  §   361. 

11  Story's  Eq.  Jur.  717a,  where  it  is  said:  "  There  is  no  pretense  for  the  com- 
plaints sometimes  made  by  the  common-law  lawyers,  that  such  relief  (specific 
performance)  in  equity  would  wholly  subvert  the  remedies  by  actions  on  the 
case  and  actions  of  covenant;  for  it  is  against  conscience  that  a  party  should 
have  a  right  of  election  whether  he  would  perform  his  covenant,  or  only  pay 
damages  for  the  breach  of  it.  But,  on  the  other  hand,  there  is  no  reasonable 
•objection  to  allowing  the  other  party,  who  is  injured  by  the  breach,  to  have 
an  election  either  to  take  damages  at  law  or  to  have  a  specific  performance 
in  equity,  the  remedies  being  concurrent  but  not  coextensive  with  each  other." 
See,  also,  Ranelagh  v.  Hayes,  1  Vern.  189;  2  Cas.  in  Ch.  146;  Power  v. 
Standish,  8  Ir.  Eq.  526.  Burroughs  v.  McNeill,  2  Dev.  &  Bat.  Eq.  (N.  C.) 
297.  See,  also,  other  cases  cited  Rawle  Covts.  for  Title  (5th  ed.),  p.  610,  n. 
Contra,  Tallman  v.  Greene,  3  Sandf.  (N.  Y.)  437. 

"It  may  be  thought  that  these  observations  would  apply  as  well  to  the 
removal  of  adverse  claims  to  the  premises  where  there  is  a  covenant  of  war- 
ranty instead  of  a  covenant  against  incumbrances.  The  cases,  however,  are 
not  parallel;  the  difference  is,  that  the  incumbrancer  ic  bound  to  receive 
payment  of  his  incumbrance  from  the  covenantor,  or  indeed  from  any  one 
not  a  volunteer;  while  an  adverse  claimant  cannot  be  compelled  to  part  with 
his  rights  for  a  pecuniary  consideration. 


OF  SPECIFIC  PERFORMANCE  OF  COVENANTS  FOR  TITLE.       517 

estop  the  grantor  from  afterwards  asserting  an  after-acquired  title 
to  the  estate,  and  that  it  has  been  sometimes  held  that  the  estoppel 
itself  operates  as  a  conveyance  to  the  covenantce.13  Nevertheless, 
under  a  covenant  for  further  assurance,  the  grantee  may  in  equity 
compel  the  grantor  to  convey  to  him  the  after-acquired  title,  if  he 
should  deem  such  a  conveyance  necessary  or  expedient.14  And  even 
in  the  absence  of  a  covenant  for  further  assurance,  it  is  appre- 
hended that  a  court  of  equity  would  compel  a  conveyance  of  the 
after-acquired  title  to  the  grantee.15 

"  Post,  "Estoppel,"  Ch.  21. 

U2  Sugd.  Vend.  (8th  Am.  ed.)  294  (613);  3  Washb.  R.  Prop.  (4th  ed.) 
479  (667)  ;  Rawle  Covts.  (5th  ed.)  §  362.  Taylor  v.  Debar,  1  Ch.  Cas.  274. 
Heath  v.  Crealock,  L.  R.,  18  Eq.  215,  242 ;  10  Ch.  App.  30.  Gen.  Finance  Co. 
v.  Liberator  Society,  L.  R.,  10  Ch.  Div.  15.  Lewis  v.  Baird,  3  McL.  (U.  S.) 
56,  80,  06.  diet.  Reese  v.  Smith,  12  Mo.  351,  06.  diet.  Henderson  v.  Overton, 
2  Yerg.  (Tenn.)  397;  24  Am.  Dec.  492,  06.  diet.  Pierce  v.  Milwaukee  R.  Co., 
24  Wis.  554;  1  Am.  Rep.  203. 

"  Steiner  v.  Baughman,  12  Pa.  St.  107,  108,  where  it  was  said  by  GIBSON, 
C.  J.,  that  if  the  vendor  had  subsequently  purchased  a  part  of  the  premises, 
equity  would  compel  him  to  convey  it  over  again  in  order  to  make  good  his 
former  deed;  and  this,  for  the  reason  that  he  had  received  value  for  it.  In 
1  Sugd.  Vend.  (8th  Am.  ed.)  533,  it  is  said  that  if  a  man  sell  an  estate  to 
which  he  had  no  title,  and  after  the  conveyance  acquire  the  title,  he  will 
be  compelled  to  convey  it  to  the  purchaser.  The  proposition  is  not  restricted 
to  cases  in  which  there  are  covenants  for  title.  See,  also,  Carne  v.  Mitchell, 
10  Jur.  909. 


CHAPTER  XXL 

ESTOPPEL  OF  THE  GRANTOR. 

GENERAL  RULES.     §  208. 

AFTER  ACQUIRED  ESTATE  MUST   BE  HELD  IN   SAME  RIGHT. 

I  209. 

MUTUAL  ESTOPPELS.     §  210. 
ESTOPPEL  OF  MORTGAGOR.     §  211. 

EFFECT  OF  VOID  CONVEYANCE  AS  AN  ESTOPPEL.     §  212. 
EFFECT    OF    ESTOPPEL    AS    AN    ACTUAL    TRANSFER    OF    THE 

AFTER-ACQUIRED   ESTATE.     §   213. 
RIGHTS    OF    PURCHASER    OF    THE    AFTER-ACQUIRED    ESTATE 

FROM  THE  COVENANTOR.     §  214. 
COMPULSORY  ACCEPTANCE  OF  THE  AFTER-ACQUIRED  ESTATE 

IN  LIEU  OF  DAMAGES.     §  215. 
WHAT  COVENANTS  WILL  PASS  THE  AFTER- ACQUIRED  ESTATE. 

§  216. 
ESTOPPEL  NOT  DEPENDENT  ON  AVOIDANCE  OF  CIRCUITY  OF 

ACTION.     §  217. 

EFFECT  OF  QUIT-CLAIM  BY  WAY  OF  ESTOPPEL.     §  218. 
ESTOPPEL  OF  GRANTEE.     §  219. 
RESUME.     §  220. 

§  208.  GENERAL  RULES.  Estoppels  are  of  two  kinds:  let. 
Estoppel  in  pcdsf  or  that  which  arises  from  the  acts  and  conduct  of 
the  party ;  thus,  if  I  induce  another  to  purchase  property  by  repre- 
senting that  the  right  of  the  vendor  to  sell  is  clear  and  undisputed, 
having  myself  at  that  time  a  claim  to  that  property,  I  will  be  es- 
topped or  precluded  from  afterwards  asserting  that  claim  as  against 
the  vendor  or  his  assigns.1  2d.  Estoppel  by  deed,  or  that  which 
arises  from  the  covenants  or  recitals  in  a  deed,  by  which  the 
grantor  makes  it  appear  that  he  is  the  rightful  owner  of  the  estate 
therein  described ;  in  such  case  if  the  grantor  have  no  title  at  the 
time  of  the  conveyance,  but  afterwards  acquire  it,  by  descent  or 
purchase,  the  law  will  not  permit  him  to  assert  the  same  against 
his  grantee,  he  being  estopped  to  deny  that  he  had,  at  the  time 
when  he  executed  the  deed,  the  title  or  the  estate  described  therein.2 

'2  Sugd.  Vend.    (8th  Am.  ed.)    507    (743). 

7  Washb.  Real  Prop.  69 ;  Bijrelow  Estoppel,  p.  453 ;  Rawle  Covt.  §  250 ;  Gr. 
Cruise  Dig.  ch.  26,  §  51;  Judge  HARE'S  note,  2  Sm.  L.  Cas.   (ed.  1866)   723. 


ESTOPPEL.  OF  THE  GKANTOE.  519 

The  reason  of  this  rule  in  large  measure  is  that  circuity  of  action 
is  thereby  avoided,  or  rather  the  subsequent  acquisition  of  the  estate 
by  the  grantor  satisfies  his  covenants  and  prevents  an  action  by  the 
eovenantee  where  he  has  sustained  no  actual  damage  from  a  breach 
of  the  covenant.3  The  history  of  the  doctrine  of  estoppel  by  deed 
as  derived  from  common-law  sources,  is  somewhat  without  the  plan 

Watkins  v.  Wassell,  15  Ark.  73.  Doe  v.  Quinlan,  51  Ala.  539.  Croft  v. 
Thornton,  125  Ala.  391:  28  So.  Rep.  84.  Klumpki  v.  Baker,  68  Cal.  559;  10 
Pac.  Rep.  197.  O'Bunnon  v.  Paremour,  24  Ga.  489;  Linsey  v.  Ramsey,  22  Ga. 
627;  Parker  v.  Jones,  57  Ga.  204.  Hoppin  v.  Hoppin,  96  111.  265;  Jones  v. 
King,  25  111.  384.  Whitson  v.  Grosvenor,  170  111.  271;  48  N.  E.  Rep.  1018; 
Owen  v.  Brookport.  208  111.  35;  69  N.  E.  Rep.  952.  Glendinnihg  v.  Oil  Co., 
162  Ind.  642;  70  N.  E.  Rep.  976.  Logan  v.  Steele,  4  T.  B.  Mon.  (Ky.)  430; 
Dickinson  v.  Talbot,  14  B.  Mon.  (Ky.)  49  (65);  Logan  v.  Moore,  7  Dana 
(Ky.),  74.  Benton  v.  Sentell,  50  La.  Ann.  869;  24  So.  Rep.  297.  Williams  v. 
Williams,  31  Me.  392.  Funk  v.  Newcomer,  10  Md.  301 ;  Williams  v.  Peters, 
(Md.)  20  Atl.  Rep.  175.  Lee  v.  Clary,  38  Mich.  223;  Smith  v.  Williams,  44 
Mich.  240;  6  N.  W.  Rep.  662.  Dye  v.  Thompson,  126  Mich.  597;  85  N.  W. 
Rep.  1113.  Kaiser  v.  Earhart,  64  Miss.  492;  1  So.  Rep.  635.  Jewell  v.  Porter, 
11  Fost.  (N.  H.)  39;  Thorndike  v.  Norris,  4  Post.  (N.  H.)  454.  Gough  r. 
Bell,  21  N.  J.  L.  156;  Moore  v.  Rake,  26  N.  J.  L.  587.  Jackson  v.  Winslow, 
9  Cow.  (N.  Y.)  18.  Wellborn  v.  Finley,  7  Jones  L.  (N.  C.)  228.  Hallyburton 
v.  Stagle,  130  N.  C.  482;  41  S.  E.  Rep.  877.  Pollock  v.  Speidel,  27  Ohio  St. 
86;  Broadwell  Phillips,  30  Ohio  St.  255.  Taggart  v.  Risley,  3  Oreg.  306. 
Harvie  v.  Hodge,  Dudley  (S.  C.),  23;  Reeder  v.  Craig,  3  McCord  (S.  C.), 
411;  Wingo  v.  Parker,  19  S.  C.  9.  Johnson  v.  Branch,  9  S.  Dak.  116;  68 
N.  W.  Rep.  173.  Robertson  v.  Gaines,  2  Humph.  (Tenn.)  367,  where  an 
executor's  deed  with  warranty,  was  held  to  estop  a  devisee,  who  had  shared 
in  the  proceeds  of  the  executor's  sale,  from  setting  up  an  after-acquired  title 
to  the  land.  Walker  v.  Arnold,  71  Vt.  263;  44  Atl.  351.  Mann  v.  Young, 
1  Wash.  (T'y.)  454.  Mitchell  v.  Petty,  2  W.  Va.  470;  98  Am.  Dec.  777. 
Clark  v.  Lumbert,  55  W.  Va.  512;  47  S.  E.  Rep.  312.  Yock  v.  Mann  (W.  Va.), 
49  S.  E.  Rep.  1019.  Balch  v.  Arnold  (Wyo.),  59  Pac.  Rep.  434.  Wiesner  v. 
Zaun,  39  Wis.  188.  Shepherd  v.  Kahle  (Wis.),  97  N.  W.  Rep.  506.  Mc- 
Williams  v.  Nisley,  2  S.  &  R.  (Pa.)  507;  7  Am.  Dec.  654;  Logan  v.  Neill. 
128  Pa.  St.  457;  18  Atl.  Rep.  343.  Burtners  v.  Keran,  24  Grant  (Va.),  42; 
Raines  v.  Walker,  77  Va.  92.  Burkitt  v.  Twyman,  (Tex.  Civ.  App.)  35  S. 
W.  Rep.  421.  The  shallow  device  of  taking  the  after-acquired  title  in  the 
iisime  of  a  stranger  will  not  prevent  the  estate  from  passing  to  the  original 
grantee.  Quivey  v.  Baker,  37  Cal.  470.  Equity  would  compel  such  grantee 
to  convey  to  the  covenantee.  Wheeler  v.  McBain,  43  La.  Ann.  859;  9  So. 
R-ep.  495. 

1  Cases  cited  in  last  note.  See,  also,  post,  §  217.  A  son  conveyed  his 
undivided  half  interest  in  his  deceased  father's  property,  and  afterward  pur- 
chased his  mother's  life  interest  in  the  property.  Held,  that  such  life  interest 
in  the  half  previously  conveyed  vested  in  the  son's  grantee.  Carnes  v.  Swift 
<Tex.  Civ.  App.),  56  S.  W.  Rep.  85.  Robinson  v.  Douthit,  64  Tex.  101. 


520  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

and  scope  of  this  work.  The  reader  desirous  of  pursuing  his  in- 
vestigations in  that  direction  is  referred  to  the  special  treatises 
upon  that  subject.4 

The  estoppel  operates  to  deprive  the  covenantor  of  the  after- 
acquired  estate  as  well  where  he  had  a  present  right  or  interest 
which  passed  at  the  time  of  the  grant  as  where  nothing  whatever 
passed.5  The  rule  is  otherwise  in  case  of  a  lease ;  if  the  lessor  has, 
at  the  time  of  making  the  lease,  any  interest  in  the  demised  prem- 
ises, that  interest  only  will  pass,  and  the  lease  will  have  no  effect 
by  way  of  estoppel  as  to  any  after-acquired  interest.6 

There  is  no  warranty  in  execution  sales;  consequently,  neither 
the  judgment  creditor  nor  the  judgment  debtor  is  estopped  to  set 
up  an  after-acquired  title  against  a  purchaser  at  a  sale  under  exe- 
cution on  the  judgment  to  which  they  were  parties.7 

If  the  covenantor  discharge  an  incumbrance  on  the  land,  pay- 
ment of  which  had  been  assumed  by  the  grantee,  he  will  not  be 
estopped  by  his  warranty  from  enforcing  such  incumbrance  by  way 
of  subrogation  to  the  rights  of  the  incumbrancer.8  But  if  he 
acquires  an  incumbrance  existing  upon  the  land  at  the  time  of  the 
conveyance,  the  payment  of  which  was  not  assumed  by  the  grantee, 
he  will  be  estopped  to  enforce  such  incumbrance,  even  though  he 
conveyed  without  warranty.88 

If  the  covenantor  disseise  the  covenantee  and  hold  the  estate 
until  the  right  of  the  disseisee  to  recover  the  possession  is  barred 
by  the  Statute  of  Limitations,  the  title  so  perfected  cannot  enure 
to  the  benefit  of  the  covenantee.9  It  has  been  held  that  this  rule 

4Bigelow  on  Estoppel,  p.  329;  Rawle  Covts.  for  Title  (5th  ed.),  ch.  11, 
p.  351. 

•House  v.  McCormick,  57  N.  Y.  319. 

•4  Kent  Com.  98.  House  v.  McCormick,  57  N.  Y.  319.  Walton  v.  Water- 
house,  2  Saund.  415. 

TPost,  §  218.  Bigelow  Estoppel  (3d.  ed.),  333.  Henderson  v.  Overton,  2 
Yerg.  (Tenn.)  394;  24  Am.  Dec.  492.  Emmerson  v.  Sansome,  41  Cal.  552. 
Frey  v.  Rawson,  66  N.  C.  466.  Dougald  v.  Dougherty,  11  Ga.  578. 

•  Brown  v.  Staples,  28  Me.  497 ;  48  Am.  Dec.  504.  Bolles  v.  Beach,  2  Zab. 
(N.  J.)  680;  53  Am.  Dec.  263. 

•aFlanary  v.  Kane,  102  Va.  547;  46  S.  E.  Rep.  681. 

•Franklin  v.  Dorland,  28  Cal.  175;  87  Am.  Dec.  111.  Tilton  v.  Emery,  17 
N.  H.  536,  the  court  saying  that  the  covenantor  may  disseise  his  covenantee 
with  the  same  effect  as  any  other.  Kent  v.  Harcourt,  33  Barb.  (N.  Y.)  491. 


ESTOPPEL  OF  THE  GKANTOE.  521 

does  not  apply  where  the  covenantor,  instead  of  disseising  the  cove- 
nantee,  merely  remains  in  possession,  without  color  of  title,  for  the 
statutory  period.10 

In  a  case  in  which  the  grantor  conveyed  vacant  and  uninclosed 
lands,  and  afterwards  entered  upon  and  inclosed  them  and  erected 
buildings  upon  them,  claiming  them  as  his  own  for  the  statutory 
period,  it  was  held  that  his  possession  could  not  be  held  permissive 
or  subordinate  to  that  of  his  grantee,  and  that  he  was  not  estopped 
from  setting  up  the  title  thus  acquired  under  the  Statute  of  Limi- 
tations against  his  grantee.11 

The  estoppel  binds  not  only  the  grantor  but  his  heir  or  devisee 
and  his  assigns,  if  they  have  notice  of  the  rights  of  the  grantee. 
The  heir  or  devisee,  it  seems,  is  bound  only  to  the  extent  of  assets 
received  from  the  grantor.12  Such  assets,  it  is  apprehended,  will 
include  personal  estate,  in  those  States  in  which  the  entire  estate 
of  a  decedent,  real  as  well  as  personal,  is  made  assets  for  the  pay- 
ment of  his  debts. 

Lineal  and  collateral  warranties  having  been  very  generally 
abolished  by  statute  in  the  American  States,  a  deed  with  full  cove- 
nants of  warranty  will  not  estop  the  heirs  of  the  grantor,  even  to 
the  extent  of  assets  descended,  from  asserting  against  the  grantee 
a  title  derived  by  them  through  some  source  other  than  him, 

Cf.  Wicklow  v.  Lane,  37  Barb.  (N.  Y.)  244.  Stearns  v.  Hendersass,  9  Cush. 
(Mass.)  497;  57  Am.  Dec.  65.  Smith  v.  Monies,  11  Tex.  24;  Ham  v.  Smith, 
79  Tex.  310.  Hines  v.  Robinson,  57  Me.  330;  99  Am.  Dec.  772.  Eddleman 
v.  Carpenter,  7  Jones  L.  (N.  C.)  616. 

10  Johnson  v.  Farlow,  13  Ired.  L.  (N.  C.)  85.  But  see  Sherman  v.  Kane,  46 
N.  Y.  Super.  Ct.  310,  where  it  was  held  the  rule"  applied  as  well  where  pos- 
session had  not  been  given  as  where  it  had  been  given  and  had  been  followed 
by  an  actual  disseisin.  In  Reynolds  v.  Cathens,  5  Jones  L.  (N.  C.)  438,  it 
was  held  that  a  grantee  of  a  covenantee,  who  had  not  given  possession,  would 
be  in  under  color  of  title,  and  that  the  title,  when  perfected  by  the  Statute 
of  Limitations,  would  not  enure  to  the  covenantee. 

"Horbach  v.  Boyd,  64  Neb.  129;  89  N.  W.  Rep.  644. 

"  2  Tucker  Bl.  Com.  303,  n.  8.  Chauvin  v.  Wagner,  18  Mo.  531,  553.  Nun- 
ally  v.  White,  3  Met.  (Ky.)  592.  In  Logan  v.  Moore,  1  Dana  (Ky.),  57,  it 
was  held  that  the  heir  was  barred  to  the  extent  of  the  value  of  the  land 
at  the  time  he  received  it  from  the  ancestor,  and  not  merely  to  the  extent  of 
the  value  at  the  date  of  the  warranty  of  the  land  claimed.  The  heir  had 
brought  ejectment  for  the  land,  setting  up  an  after-acquired  title. 


522  MARKETABLE    TITLE    TO    REAL    ESTATE. 

the  grantor  ;13  though,  of  course,  if  they  had  received  assets  from  the 
grantor,  by  descent,  they  will  be  liable  to  that  extent  for  the  breach 
of  his  covenant. 

It  has  been  held  that  a  grantor  with  warranty  will  be  estopped 
from  setting  up  a  resulting  trust  in  the  premises  for  his  own 
benefit.  Thus,  he  cannot  show  that  after  the  deed  was  delivered 
it  was  agreed  that  the  grantee  should  hold  the  property  merely  as 
trustee  for  sale  and  payment  of  the  grantor's  debts.  He  cannot 
by  parol  do  away  with  his  covenant  of  warranty."  Conversely,  a 
grantor  by  warranty  deed  of  land  impressed  with  a  resulting  trust 
in  the  grantee's  hands,  is  not  estopped  by  his  warranty  from  ac- 
quiring the  interests  of  the  cestui  que  trust.15 

No  estoppel  arises  where  the  grantor's  covenants  have  been  ex- 
tinguished ;  as  where  he  conveyed  the  land  to  one  through  whom 
by  mesne  conveyances  he  acquires  the  title.16  Thus,  if  A.  convey 
to  B.  with  warranty,  and  B.  convey  to  C.,  and  then  C.  conveys  to 
A.,  the  original  grantor,  A.'s  covenants  to  B.  are  extinguished,  and 
the  title  acquired  by  him  from  C.  cannot  enure  to  the  benefit  of  B. 
If  this  were  not  so,  no  man  could  safely  purchase  property  which 
he  had  once  conveyed  away  with  warranty.  In  order  that  a  cove- 
nant of  warranty  shall  estop  the  grantor  from  setting  up  an  after- 
acquired  estate,  it  must  appear  that  the  title  to  such  estate  is  ad- 
verse and  not  subordinate  to  the  title  conveyed  by  the  grantor.17  A 

"Russ  v.  Alpaugh,  118  Mass.  369;  19  Am.  Rep.  464.  Foote  v.  Clark,  102 
Mo.  394;  19  S.  W.  Rep.  981.  Whitson  v.  Grosvenor,  170  111.  271;  48  N.  E. 
Rep.  1018. 

"Rathbun  v.  Rathbun,   6  Barb.    (N.  Y.)    107. 

"Condit  v.  Bigalow,  64  N.  J.  Eq.  504;   54  Atl.  160. 

"Goodel  v.  Bennett,  22  Wis.  565.  In  Smiley  v.  Fires,  104  111.  416,  where 
A.,  owning  three-fourths  of  an  estate,  conveyed  the  whole  with  warranty  to 
B.,  who  owned  the  other  fourth,  and  who,  at  the  same  time,  with  like  war- 
ranty, conveyed  that  fourth  to  A.,  it  was  held  that  the  warranty  of  the  one- 
fourth  from  A.  to  B.  was  extinguished  by  B.'s  reconveyance  to  A.,  so  that 
A.'s  after-acquired  title  could  not  enure  to  the  benefit  of  B. 

"Thielen  v.  Richardson,  35  Minn.  509;  29  N.  W.  Rep.  677.  In  this  case  it 
appeared  that  in  1851  C.  executed  to  R.  a  warranty  deed  to  certain  lots. 
In  1857  B.  owned  these  lots,  but  how,  when,  or  from  whom  he  got  title  did  not 
appear,  nor  whether  his  title  was  adverse  or  subordinate  to  that  of  C.  In 
1857  B.  conveyed  to  C.  On  these  facts  it  was  held  that  C.  was  not  estopped 
by  his  warranty  to  assert  against  R.  the  title  so  acquired  from  B. 


ESTOPPEL  OF  THE  GKANTOK.  523 

covenant  of  general  warranty  in  a  deed  will  not  estop  the  grantor 
from  claiming  a  breach  of  explicit  conditions  in  the  granting  part 
of  the  deed  restricting  the  future  use  of  the  property.18 

Neither  the  grantor  nor  his  heirs  or  his  representatives  will  be 
estopped  to  show  that  the  deed  was  obtained  through  fraud  of  the 
vendee,  even  as  against  a  subsequent  purchaser  without  notice,  and 
though  the  purchase  money  was  received  after  notice  of  the  fraud.1' 
A  fraudulent  purchaser  gets  no  title  to  the  land,  though  the  vendor 
gains  a  good  title  to  the  purchase  money.  The  policy  of  the  law  is 
to  punish  a  fraudulent  purchaser.20  No  lapse  of  time  nor  any  act 
of  confirmation  by  the  party  defrauded,  even  with  a  full  knowledge 
of  the  facts,  can  restore  and  make  vital  a  contract  dead  on  account 
of  fraud.  A  new  contract  for  additional  consideration  may  be 
made,  but  the  old  is  forever  gone;  once  a  cheat,  the  things  so 
remains.21 

If  land  be  conveyed  by  warranty  deed  subject  to  a  mortgage,  or 
the  grantee  assumes  and  agrees  to  pay  the  mortgage  as  a  part  of 
the  purchase  price,  the  grantor  may  purchase  and  enforce  the 
mortgage  against  the  land;  he  is  not  estopped  by  his  warranty  to 
set  up  the  title  so  acquired.22  But  if  the  only  reference  in  the  deed 
to  the  mortgage  is  to  except  it  from  the  covenant  against  incum- 
brances,  it  has  been  held  that  such  exception  does  not  extend  to 
or  modify  the  covenant  of  warranty,  and  that  any  title  acquired 
by  the  grantor  on  foreclosure  of  the  mortgage  would  enure  to  the 
benefit  of  the  grantee.23 

The  covenantor  is  estopped  to  set  up  the  after-acquired  estate  as 
well  against  a  remote  grantee  as  against  his  own  grantor  in  every 

"Linton  v.  Allen,  154  Mass.  432;   28  N.  E.  Rep.  780. 

"Jackson  v.  Summerville,  13  Pa.  St.  359. 

20  Id.  Gilbert  v.  Hoffman,  2  Watts  (Pa.),  66;  26  Am.  Dec.  103;  SmuU 
v.  Jones,  1  W.  &  S.  (Fa.)  138. 

11  Language  of  COULTER,  J.,  in  Jackson  v.  Summerville,  supra.  Duncan  v. 
McCullough,  4  S.  &  R.  (Pa.)  485;  Chamberlain  v.  McClurg,  8  W.  &  S.  (Pa.) 
3(5.  Co.  Litt.  214b. 

"Merritt  v.  Byers,  46  Minn.  74;  48  N.  W.  Rep.  417.  Walther  v.  Briggs, 
69  Minn.  98;  71  N.  W.  Rep.  909.  Brown  v.  Staples,  28  Me.  497;  48  Am. 
Doc.  504. 

13  Sandwich  v.  Mfg.  Co.  v.  Zellner,  48  Minn.  508;  50  N.  W.  Rep.  379. 
Rooney  v.  Koenig,  80  Minn.  483;  83  N.  W.  Rep.  399. 


524  MARKETABLE    TITLE    TO    REAL   ESTATE. 

case  in  which  the  remote  grantee  is  entitled  to  the  benefit  of  the 
covenants  of  the  original  grantor.24  The  fact  that  one  of  the  in- 
tervening deeds  in  such  case  was  a  quit  claim  conveying  only  the 
grantor's  right,  title  and  interest  in  the  land,  will  not  prevent  the 
passage  of  the  after-acquired  estate  of  the  original  grantor  and 
covenantor  to  the  remote  grantee.25 

A  covenant  of  warranty  in  a  deed  cannot  operate  by  way  of  es- 
toppel to  confer  upon  the  grantee  greater  title  than  the  deed  itself 
would  have  conferred,  if  effective.  Thus,  in  a  case  in  which  joint 
owners  executed  a  deed  with  warranty  making  partition  of  the 
land  between  themselves,  and  it  afterwards  developed  that  one  of 
the  grantors  had  no  valid  interest  in  the  land,  it  was  held  that 
neither  the  other  grantor,  nor  his  heirs,  were  estopped  by  his 
warranty  to  assert  title  to  the  whole  of  the  land.26 

A  provision  in  a  statute  that  an  after-acquired  title  of  the  grantor 
shall  enure  to  the  benefit  of  the  grantee,  refers  to  acquisition  by 
descent  as  well  as  by  other  methods.27 

§  209.  AFTER-ACQUIRED  ESTATE  MUST  BE  HELD  IN  SAME 
BIGHT.  The  after-acquired  estate  must  be  held  by  the  grantor  in 
the  same  right  as  that  in  which  the  coveyance  was  made.  Thus  if 
he  convey  in  his  individual  capacity,  and  reacquire  the  estate  in  a 
fiduciary  capacity,28  e.  g.,  as  trustee  express  or  implied,29  the  after- 
acquired  title  will  not  enure  to  the  benefit  of  the  covenantor. 
Accordingly,  where  a  person  took  a  conveyance  in  his  own  name, 
the  consideration  for  which  was  advanced  by  another,  and  then 
conveyed  to  that  other,  it  was  held  that  he  was  not  estopped  from 
afterwards  acquiring  the  title  and  setting  it  up  against  the 
grantee." 

"Johnson  v.  Johnson,  170  Mo.  34;  70  S.  W.  Rep.  241;  59  L.  R.  A.  748. 

"Johnson  v.  Johnson,  170  Mo.  34;  70  S.  W.  Rep.  241;  59  L.  R.  A.  748. 

29  Davis  v.  Agnew,  67  Tex.  206;  2  S.  W.  Rep.  43,  376.  Chace  v.  Gregg, 
88  Tex.  552;  32  S.  W.  Rep.  520. 

"Leflore  County  v.  Allen,  80  Miss.  298;  31  So.  Rep.  815. 

28  Jackson  v.  Hoffman,  9  Cow.  (N.  Y.)  271;  Sinclair  v.  Jackson,  8  Cow. 
(N.  Y.)  587,  semble. 

21  Kelly  v.  Jenness,  50  Me.  455.     Gregory  v.  Peoples,  80  Va.  355. 

90  Jackson  v.  Mills,  13  Johns.  (N.  Y.)  463.  The  same  rule  applies  to  the 
converse  of  this  state  of  facts,  as  where  a  person  without  title  conveys,  and 
afterwards  acquires  the  title  as  trustee.  Burchard  v.  Hubbard,  11  Ohio,  316. 


ESTOPPEL   OF  THE  GRANTOR.  525 

So,  where  several  coparceners  exchanged  deeds  in  partition,  and 
one  of  them  afterwards  died,  it  was  held  that  the  survivors  were  not 
estopped  to  claim  an  interest  as  heirs  in  the  share  conveyed  to  the 
decedent.31 

§  210.  MUTUAL  ESTOPPELS.  If,  for  any  reason,  the  cove- 
nantee  is  estopped  to  pursue  his  remedy  against  the  covenantor,  in 
other  words,  if  there  are  mutual  estoppels,  the  after-acquired  title 
will  not  pass.  The  estoppel  is  thereby,  in  the  language  of  the 
ancient  common-law  authorities,  "  set  at  large."32  The  simplest 
illustration  of  this  principle  is  furnished  by  an  exchange  of  lands 
in  which- the  parties  stipulate  that  in  case  either  is  evicted  he  may 
re-enter  upon  the  land  of  the  other.  In  such  a  case,  the  evicted 
party  is  not  estopped  by  his  warranty,  to  recover  his  original  land 
from  the  other.33 

§  211.  ESTOPPEL  OF  MORTGAGOR.  A  mortgage  containing 
covenants  of  warranty  is  as  effectual  to  pass  an  after-acquired  title 
as  a  conveyance  in  fee.34  And  a  mortgage  without  warranty  has  been 
held  sufficient  for  that  purpose  ;35  but  there  is  a  conflict  of  authority 
upon  this  point.36  A  covenant  of  warranty  contained  in  a  purchase- 
money  mortgage  will  not  estop  the  mortgagor  to  set  up  a  sub- 
• i 

"Carson  v.  Carson,  122  N.  C.  645;  30  S.  E.  Rep.  4. 

"Com.  Dig.  Estoppel  E.;  Co.  Litt.  352b;  Rawle  Covt.  §  252.  Kimball  v. 
Schoff,  40  N.  H.  190;  Carpenter  v.  Thompson,  3  N.  H.  204;  14  Am.  Dec.  348. 
111.  Land  Co.  v.  Bonner,  91  111.  114,  119,  a  case  in  which  tenants  in  common 
made  partition  by  conveying  each  to  the  other  with  covenants  of  warranty. 
Brown  v.  Staples,  28  Me.  503;  58  Am.  Dec.  504,  where  the  covenantees  had 
by  an  instrument  of  as  high  a  nature  as  the  covenant,  undertaken  to  remove 
an  incumbrance  on  the  premises,  the  existence  of  which  was  complained  of  as 
a  breach  of  covenant. 

"Grimes  v.  Redmon,  14  B.  Mon.  (Ky.)  234  (2d  ed.)  189.  Pugh  v.  Mayo, 
60  Tex.  191. 

"Jones  v.  Mortgages,  §§  561,  682,  825.  Judge  HABE'S  note  to  Duchess  of 
Kingston's  Case,  2  Sm.  Lead.  Cas.  (8th  Am.  ed.)  838.  Edwards  v.  Davenport, 
4  McCr.  (U.  S.)  36.  Rice  v.  Kelso,  57  Iowa,  115;  10  N.  W.  Rep.  235.  Clark 
v.  Baker,  14  Cal.  612;  76  Am.  Dec.  449.  Chamberlain  v.  Meeder,  16  N.  H.  381. 
Crosg  v.  Robinson,  21  Conn.  387.  Plowman  v.  Shidler,  36  Ind.  484;  Boone  v. 
Armstrong,  87  Ind.  169;  Randall  v.  Lower,  98  Ind.  256.  People's  Sav.  Bank 
v.  Lewis  (Wash.),  79  Pac.  932;  Logue  v.  Atkinson  (Tex.  Civ.  App.),  80  S. 
W.  Rep.  137. 

S5  Stewart  v.  Anderson,  10  Ala.  504. 

"Donovan  v.  Twist,  83  N.  Y.  Supp.  76;  85  App.  Div.  130;  Jackson  V. 
Littell,  56  N.  Y.  108. 


526  MARKETABLE    TITLE    TO    REAL    ESTATE. 

sequently  acquired  title  against  the  mortgagee,37  nor  to  recover  on 
the  covenants  in  the  original  conveyance  by  the  mortgagee,38  the 
deed  and  purchase-money  mortgage  being  regarded  as  parts  of  one 
and  the  same  transaction.  "  Equity  does  not  require  that  a  grantee 
should  mortgage  back  a  greater  estate  than  that  which  his  grantor 
professed  to  vest  in  him ;  nor  can  it  be  implied  that  a  grantee,  in 
mortgaging  back  the  land  for  the  purchase  money,  intended  to 
grant  an  estate  which  the  deed  assumed  to  grant,  but  which  it  did 
not  vest  in  him."39 

If  the  owner  of  land  execute  a  second  mortgage  on  it  with  cove- 
nants of  warranty  and  against  incumbrances,  and  afterwards  pay 
off  the  first  mortgage,  the  payment  enures  to  the  benefit  of  the 
second  mortgagee,  and  the  grantor  is  estopped  from  claiming  to  be 
subrogated  to  the  benefit  of  the  first  mortgage.40 

§  212.  EFFECT  OF  VOID  CONVEYANCE  AS  AN  ESTOPPEL. 
The  rule  that  an  after-acquired  title  passes  to  the  grantee  by  virtue 

"Bigelow  Estoppel  (4th  ed.),  403;  Rawle  Covt.  §  267;  Co.  Litt.  390. 
Haynes  v.  Stevens,  11  N.  H.  32.  Randall  v.  Lower,  98  Ind.  256.  Ingalls  v. 
Cook,  21  Iowa  560.  Brown  v.  Staples,  28  Me.  497;  58  Am.  Dec.  504;  Hardy 
v.  Nelson,  27  Me.  528;  Smith  v.  Cannell,  32  Me.  125.  Geyer  v.  Girard,  22 
Mo.  160;  Connor  v.  Eddy,  25  Mo.  72.  Kellogg  v.  Wood,  4  *Paige  (N.  Y), 
77.  Lot  v.  Thomas,  Penn.  (N.  J.)  300;  2  Am.  Dec.  354.  Sumner  v.  Bar- 
nard, 12  Met.  (Mass.)  461;  Hancock  v.  Carl  ton,  6  Gray  (Mass.),  61;  Pike  v. 
Goodnow,  12  Allen  (Mass.)  474.  A  contrary  decision  appears  to  have  been 
made  in  Hitchcock  v.  Fortier,  65  111.  239.  Here  the  land  was  conveyed  with- 
out warranty,  and  immediately  reconveyed  in  mortgage,  with  warranty,  to 
secure  the  purchase  money.  This  was  undoubtedly  a  case  of  great  hardship. 
The  original  grantor  had  no  title,  yet  as  mortgagee  he  reaped  the  full  benefit 
of  a  title  afterwards  acquired  by  the  mortgagor.  Such  a  decision  could  not 
have  been  rendered  if  the  original  grantor  had  conveyed  with  warranty.  It 
may  be  doubted  whether  the  fact  that  the  grantor  took  a  mortgage  on  the 
premises  to  secure  the  purchase  money  did  not  show  an  intent  to  convey  an 
estate  of  a  particular  description,  and  not  merely  such  interest  as  the  grantor 
might  have.  This  case  has  been  severely  criticised.  Rawle  Covt.  (5th  ed.) 
p.  425 ;  Bigelow  Estoppel  ( 4th  ed. ) ,  404.  One  who  gives  a  purchase-money 
mortgage  that  includes  other  lands  not  granted  him  by  the  mortgagee,  will 
not  bt~  estopped  as  against  the  mortgagee  to  set  up  an  after-acquired  title  to 
those  lands.  Brown  v.  Phillips,  40  Mich.  264. 

"Resser  v.  Carney   (Minn.),  54  N.  W.  Rep.  89. 

"Randall  v.  Lower,  98  Ind.  256. 

40  Butler  v.  Seward,  10  Allen  (Mass.),  466;  Comstock  v.  Smith,  13  Pick. 
(Mass.)  119;  23  Am.  Dec.  670;  Trull  v.  Eastman,  3  Met.  (Mass.)  124;  37 
Am.  Dec.  126.  Hooper  v.  Henry,  31  Minn.  264;  17  N.  W.  Rep.  476. 


ESTOPPEL  OF   THE  OBANTOB.  527 

of  the  grantor's  covenant  of  warranty  has  been  held  not  to  apply 
where  the  conveyance  is  prohibited  by  law,  e.  g.,  a  conveyance  of 
premises  in  the  possession  of  an  adverse  claimant.41  In  those  States, 
however,  in  which  a  champertous  deed  is  held  to  be  valid  as  be- 
tween the  parties  though  void  as  to  strangers,  it  is  apprehended  that 
the  after-acquired  title  would  pass  to  the  grantee.42  Upon  the 
same  principle  it  has  been  held  that  no  estoppel  arises  out  of  a 
fraudulent  conveyance  with  covenant  of  warranty;  the  sub- 
sequently-acquired title  cannot  be  thus  made  to  enure  to  the  bene- 
fit of  the  fraudulent  grantee,  and  the  grantor  be  permitted  to  ac- 
complish by  indirection  what  the  law  forbids  to  be  directly  done.45 
But  where  the  rights  of  creditors  are  not  concerned,  the  fact  that 
a  deed  is  fraudulent,  and  the  fraud  known  to  both  parties,  will  not 
prevent  an  after-acquired  title  from  enuring  to  the  grantee.  In 
such  a  case  the  law  will  not  assist  the  grantor  to  avoid  a  conse- 
quence of  his  own  fraud.44 

It  has  been  held  that  a  conveyance  of  the  homestead  by  the 
husband,  with  warranty,  where  void  under  the  laws  of  the  State 

41  Kennedy  v.  McCartney,  4  Port.    (Ala.)    141,   158,  the  court  saying  that 
the  covenantor  is  not  estopped  where  he  is  inhibited  from  selling  by  the  letter, 
spirit  or  policy  of  a  legislative  act.     Kercheval  v.  Triplett,  1  A.  K.  Marsh. 
(Ky.)    493.     Altemus  v.  Nichols,  24  Ky.  Law  R.  2401;   74  S.  W.  Rep.  221. 

42  Farnum  v.  Peterson,  111  "Mass.  148,  the  court  saying:   "When  it  is  said 
that  the  deed  of  one  who  is  disseised  is  void,  it  is  intended  only  that  it  is 
inoperative  to  convey  legal  title  and  seisin,  or  a  right  of  entry  upon  which  the 
grantee  may  maintain  an  action  in  his  own  name  against  one  who  has  actual 
seisin.     It  is  not  void  as  a  contract  between  the  parties  to  it.     The  grantee 
may  ~vail  himself  of  it  against  the  grantor  by  way  of  estoppel,  or  by  suit  upon 
the  covenants;  or  he  may  recover  the  land  by  an  action  in  the  name  of  the 
grantcA     Although  he  has  no  right  of  entry,  yet  if  by  lawful  means  he  comes 
into  possession,  he  may  then  avail  himself  of  the  title  of  his  disseised  grantor, 
and,  by  unitirg  that  to  his  own  present  possession,  defeat  recovery  by  the 
intermediate  desseisor.     Wade  v.  Lindsay,  6  Met.    (Mass.)    407,  413;   Cleve- 
land v.  Flagg,  4  Cush.    (Mass.)    76.     And  his  title  will  also  be  made  good 
against  any  one  attempting  to  set  up  a  deed   from  his  grantor   subsequent 
to  his  own.     WThite  v.  Patten,  24  Pick.    (Mass.)    324." 

43  Stokes  v.  Jones,  18  Ala.  734;  S.  C.,  21  Ala.  738,  the  court  saying,  in  the 
latter  case,  that  the  grantor  cannot  avoid  the  claims  of  creditors  or  bona  fide 
purchasers,  by  conveying  with  warranty  to  defraud  them,  and  afterwards  ac- 
quiring the  title. 

"Barton  v.  Morris,  15  Ohio,  408.     Smith  v.  Ingram,   132  N.  C.,  959;    44 
S.  E.  Rep.  643;  61  L.  R.  A.  878. 


528  MARKETABLE   TITLE    TO   REAL   ESTATE. 

because  not  executed  by  the  wife  also,  does  not  estop  the  grantor 
from  setting  up  title  in  himself  after  the  death  of  the  wife.*5 

If  a  deed,  by  reason  of  imperfect  execution,  be  insufficient  to 
pass  the  estate,  and  the  grantor  having  no  title,  afterwards  acquire 
title,  it  will  not  enure  to  the  benefit  of  the  grantee.4*  If  this  were 
not  so,  land  might  be  made  to  pass,  otherwise  than  by  deed,  will 
or  descent.  It  would  be  absurd  to  hold  that  an  instrument,  which 
the  law  declares  to  be  wholly  invalid,  should,  nevertheless,  by 
reason  of  the  covenants  of  the  grantor,  operate  effectually  as  a 
grant  and  transfer  of  the  estate.47  Accordingly  a  deed  insufficient 
for  want  of  attestation  as  required  by  law,  was  held  not  to  estop 
the  grantor,  even  though  it  contained  a  general  warranty.48  A  dis- 
tinction appears  to  have  been  made  between  deeds,  void  for  want 
of  due  execution,  and  such  as  are  insufficient  for  want  of  proper 
words  of  conveyance,  as  respects  their  operation  by  way  of  estoppel. 
Thus  it  has  been  held  that  an  instrument,  void  as  a  deed  lor  want 
of  words  of  grant,  but  containing  a  general  warranty,  was  sufficient 
to  estop  the  grantor  from  setting  up  an  after-acquired  title  to  the 
land  j49  and  that  a  deed  inoperative  to  convey  a  fee  by  way  of  grant, 
for  want  of  words  of  inheritance,  will,  if  it  contain  a  general  war- 
ranty, have  that  effect  by  way  of  estoppel.50 

A  conveyance  of  a  part  of  the  public  lands  by  one  who  has  made 
an  entry  thereon,  but  whose  title  has  not  been  perfected  by  fulfill- 
ment of  all  the  requirements  of  the  land  laws,  is  void  as  between 
the  grantor  and  the  United  States,  but  has  been  held  valid  as  be- 
tween the  grantor  and  grantee;  so  that  upon  the  issuing  of  ft 
patent  after  final  proof  by  the  entryman,  the  title  so  acquired 
enures  immediately  to  the  benefit  of  the  grantee.51 

The  validity  of  the  deed  and  its  effect  by  way  of  estoppel,  are  to 
be  determined  by  the  law  of  the  place  where  the  land  is  located, 
and  not  by  the  law  of  the  place  where  the  deed  was  made.6* 

^Bolen  v.  Lilly,  85  Miss.  344;   37  So.  Rep.  811. 
-Wallace  v.  Miner,  6  Ohio,  367,  371. 

*  Connor  v.  McMurray,  2  Allen    (Mass.),  204. 

*  Patterson  v.  Pease,  5  Ohio,   191. 

•Brown  v.  Manter,  1  Fost.   (N.  H.)   528;  53  Am.  Dec.  223. 
"Terrett  v.  Taylor,  9   Cranch    (U.  S.),   53.     Somes  v.   Skinner,  3   Pick. 
(Mass.)   60. 

"Anderson  v.  Wilder,  83  Miss.  606;  35  So.  Rep.  875. 
"Smith  v.  Ingram,  132  N.  C.,  959;  44  S.  E.  Rep.  643;  61  L.  R.  A.  878. 


ESTOPPEL   OF   THE  GKANTOK.  529 

§  213.  EFFECT  OF  ESTOPPEL  AS  AN  ACTUAL  TRANSFER  OF 
THE  AFTER-ACQUIRED  ESTATE.  It  seems  to  be  established  in 
America  that  the  effect  of  an  estoppel  arising  from  the  covenants 
or  recitals  by  the  grantor  in  his  deed,  is  to  actually  transfer  the 
after-acquired  estate  to  the  grantee,  so  as  to  obviate  the  necessity 
of  a  second  conveyance  of  the  premises.53  The  learned  com- 
mentators upon  this  somewhat  abstruse  branch  of  the  law  of  real 
property  have  devoted  much  space  to  the  consideration  of  the 
question  whether  the  effect  of  the  estoppel  is  to  actually  transfer 

M  This,  while  deprecated,  is  admitted  by  Mr.  Rawle  to  be  the  rule  in  most 
of  the  States.  Covts.  for  Title  (5th  ed.),  §  248.  The  actual  transfer  of  the 
after-acquired  estate  to  the  grantor  by  force  of  the  estoppel  is  recognized  in 
the  following  cases,  though  it  was  unnecessary  in  few,  if  any  of  them,  to 
decide  anything  more  than  that  the  grantor  could  not  set  up  the  after-acquired 
title  as  against  the  grantee:  Hoyt  v.  Dimon,  5  Day  (Conn.),  479;  Dudley  v. 
Cadwell,  119  Conn.  226.  Rigg  v.  Cook,  4  Gil.  (111.)  336;  46  Am.  Dec.  462. 
Bank  v.  Mersereau,  6  Barb.  Ch.  (N.  Y.)  528.  Middlebury  College  v.  Cheney, 
1  Vt.  349.  Moore  v.  Rake,  2  Dutch,  (N.  J.)  574;  Vreeland  v.  Blauvelt,  23 
N.  J.  Eq.  483.  Bell  v.  Adams,  81  N.  C.  118.  Douglas  v.  Scott,  5  Ohio,  199. 
Bailey  v.  Hoppin,  12  R.  I.  560.  Barr  v.  Gratz,  4  Wh.  (U.  S.)  222;  Harmer 
v.  Morris,  1  McL.  (U.  S.)  44.  In  Kinsman  v.  Loomis,  11  Ohio,  479,  it  was 
said  that  the  grantee  might  not  only  avail  himself  of  the  estoppel  defensively, 
but  that  it  would  sustain  ejectment  by  him,  citing  Hill  Abr.  401.  In  Brown 
v.  Manter,  1  Post,  (N.  H.)  528;  53  Am.  Dec.  223,  it  was  held  that  the 
operation  of  an  estoppel  was  to  prevent  circuity  of  action  and  not  to  transfer 
the  estate.  In  Burtners  v.  Keran,  24  Grat.  (Va.)  42,  it  was  held  that  a 
deed  of  bargain  and  sale  with  warranty,  while  it  estopped  the  grantor  from 
setting  up  title  to  the  after-acquired  estate,  did  not  operate  as  an  actual 
transfer  of  that  estate.  Such  an  effect  could  be  given  only  to  a  fine,  feoff- 
ment,  common  recovery,  or  other  conveyance  of  like  dignity,  at  common  law. 
Inasmuch  as  a  deed  of  bargain  and  sale  has,  in  America,  completely  super- 
seded these  ancient  common-law  modes  of  conveyance,  and  accomplishes  all 
of  their  purposes,  it  is  difficult  to  perceive  why  it  should  r.ot  be  given  the 
same  effect  by  way  of  estoppel.  Mr.  Rawle  cites  a  large  number  of  American 
oases  to  the  proposition  that  the  effect  of  a  conveyance  with  covenants  of 
warranty  is  to  actually  transfer  to  the  covenantee  any  title  which  the  cov- 
enantor may  afterwards  acquire.  Examination  of  these  cases  will  show,  as 
observed  by  Mr.  Bigelow  (Estoppel  [4th  ed.l,  420),  that  in  few,  if  any  of 
thorn,  was  it  necessary  to  decide  that  the  estate  was  actually  transferred  by 
the  estoppel,  there  being  no  question  raised  as  to  the  rights  of  a  purchaser 
of  the  after-acquired  title,  nor  as  to  the  right  of  the  covenantee  to  compel 
the  covenantor  to  accept  such  title  in  lieu  of  damages  for  a  breach  of  cov- 
enant. Those  cases  may  be  seen  on  pp.  367,  380,  Rawle  Covt.  (5th  ed.). 
Most  of  them  are  mere  reiterations  of  the  well-established  rule  that  the 
grantor  cannot  set  up  the  after-acquired  title  against  his  grantee. 

34 


530  MARKETABLE    TITLE    TO    EEAL   ESTATE. 

the  estate,  or  merely  to  rebut  any  claim,  which  the  grantor  might 
make,  to  the  estate  by  virtue  of  the  after-acquired  title.  Inasmuch 
as  the  grantee  would,  in  either  case,  be  in  the  actual  possession  and 
enjoyment  of  the  estate,  the  question  would  seem  to  have  little  or 
no  practical  value,  but  for  the  bearing  which  it  has  upon  two  other 
questions,  namely:  (1)  Whether  one  who  purchases  the  after-ac- 
quired title  from  the  grantor,  without  notice  of  the  rights  of  the 
prior  purchaser,  who  bought  when  the  grantor  had  no  title,  will  be 
preferred  to  such  purchaser.  (2)  Whether  the  covenantee  can  be 
compelled  to  accept  the  after-acquired  title  in  lieu  of  damages  for 
the  breach  of  the  covenant;  in  other  words,  whether,  after  the 
contract  has  been  executed  by  a  conveyance  with  covenants  of 
warranty,  the  grantor  will  be  permitted  to  perfect  the  title  by 
getting  in  the  rights  of  an  adverse  claimant,  so  that  the  same  may 
enure  to  the  benefit  of  his  grantee,  and  prevent  an  action  at  law 
for  the  breach  of  his  covenant. 

With  respect  to  the  first  question,  the  doctrine  of  an  actual  trans- 
fer of  the  after-acquired  title  has  been  considered  to  furnish  some 
ground  for  those  cases  which  hold  that  a  purchaser  of  that  title, 
without  notice,  takes  subject  to  the  rights  of  the  original  purchaser, 
the  covenantee;  and  as  to  the  second  question,  that  the  effect  of 
that  doctrine  is  to  deprive  the  covenantee  of  his  election  to  recover 
damages  for  a  breach  of  the  covenant,  or  to  take  the  after-acquired 
title.  It  remains  now  briefly  to  consider  both  of  these  questions. 

§  214.  BIGHTS  OF  PUBCHASEB  OF  AFTEB- ACQUIRED  TITLE. 
It  seems  to  be  a  generally  accepted  rule  throughout  the  United 
States  that  a  purchaser  in  searching  the  records  for  any  prior  con- 
veyance which  the  vendor  may  have  made,  need  not  extend  his 
search  back  beyond  the  time  at  which  the  instrument  evidencing 
the  vendor's  title54  was  admitted  to  record.  If  the  rule  were  other- 
wise the  labors  of  the  purchaser  would  be  multiplied  indefinitely, 
for  not  only  would  he  be  compelled  to  cover  in  his  search  a  period 
of  time  in  which  the  grantor  might  have  conveyed  the  premises 
when  he  was  without  title,  but  a  similar  search  would  be  necessary 

"2  Pom.  Eq.  Jur.  (13th  ed.)  §  761,  and  cases  there  cited.  Rawle  Covt. 
(5th  ed.)  §  259,  where  the  author  says  that  a  purchaser  who  searches  the 
registry  for  previous  deeds  made  by  his  grantor,  is  not  obliged  to  go  beyond 
what  is  called  "  the  line  of  title,"  and  that  it  would  be  affectation  to  cite 
authority  for  such  familiar  knowledge. 


ESTOPPEL   OF   THE  GRANTOR.  531 

at  each  successive  step  backward  in  the  chain  of  title.  In  a  few  of 
the  States,  however,  it  has  been  held  that  not  only  is  the  grantor 
estopped  from  denying  that  he  had  title  at  the  time  of  his  con- 
veyance as  against  his  grantee,  but  that  the  estoppel  extends  to  a 
purchaser  of  the  after-acquired  title  from  the  grantor,  even  though 
he  had  no  notice  of  the  prior  conveyance,  and  prevents  him  from 
setting  up  such  title  against  the  original  grantee ;  and  this  upon 
the  ground  that  the  effect  of  the  estoppel  is  to  actually  transfer  to 
the  grantee  the  after-acquired  title  and  to  override  any  subsequent 
alienation  of  the  premises  by  the  grantor.55  But  this  extension  of 
the  doctrine  of  estoppel  has  been  denied  by  the  courts  of  other 
States,  and  vigorously  combated  by  able  and  discriminating  text- 
writers.56  They  argue  that  the  original  purchaser  having  bought 
without  examining  the  title,  or  with  knowledge  that  the  title  was 
bad  if  he  made  such  examination,  is  in  no  position  to  demand 
favors.  It  is  true  that  the  question  is,  where  there  was  a  warranty 

"3  Washb.  Real  Prop.  (4th  ed.)  p.  118.  Trevivan  v.  Lawrence,  1  Salk. 
276;  S.  C.,  6  Mod.  258.  Ld.  Raym.  1051.  Somes  v.  Skinner,  3  Pick.  (Mass.) 
52;  White  v.  Patten,  24  Pick.  (Mass.)  324;  Russ  v.  Alpaugh,  118  Mass. 
369,  376;  19  Am.  Rep.  464;  Knight  v.  Thayer,  125  Mass.  27,  where  it  was 
said  by  the  court:  "We  are  aware  that  this  rule,  especially  as  applied  to 
subsequent  grantees,  while  followed  in  some  States,  has  been  criticised  in 
others.  *  *  *  But  it  has  been  too  long  established  and  acted  on  in  Massa- 
chusetts to  be  changed,  except  by  legislation."  Jarvis  v.  Aiken,  25  Vt.  635. 
Tefft  v.  Munson,  57  N.  Y.  97.  Compare  Bernardy  v.  Mortgage  Co.  (S.  Dak.), 
98  N.  W.  Rep.  167.  In  McCusker  v.  McEvoy,  9  R.  I.  528;  11  Am.  Rep.  295, 
it  was  said  that  the  rule  should  be  altered  by  statute  in  order  to  give  full 
effect  to  the  registry  laws,  and  prevent  them  from  operating  as  a  snare 
rather  than  a  protection  to  purchasers.  In  Phelps  v.  Kellogg,  15  111.  131, 
a  purchaser  of  the  after-acquired  title  was  charged  with  notice  of  a  prior 
deed  by  his  grantor  which  was  recorded  before  the  latter  acquired  title.  Mr. 
Rawle  comments  upon  the  foregoing  decisions  as  follows :  "  These  cases  are 
wholly  indefensible,  and  are  opposed  not  only  to  the  registry  acts  at  law, 
but  also  to  elementary  principles  of  equity.  Nor  can  such  cases  be  sustained 
upon  the  ground  that  the  doctrine  has  become  a  rule  of  property,  for  there 
is  no  rule  of  property  involved  in  protecting  a  negligent  purchaser  who  buys 
what  his  vendor  has  not  got  to  sell."  Covts.  (5th  ed.)  p.  424. 

M  Judge  HARE'S  note,  Doe  v.  Oliver,  2  Sm.  L.  Cas.  700.  Calder  v.  Chapman, 
52  Pa.  St.  359;  91  Am.  Dec.  163,  overruling  in  effect  Brown  v.  MoCormick, 
6  Watts  (Pa.)  60;  21  Am.  Dec.  450.  Dodd  v.  Williams.  3  Mo.  App.  278. 
Burke  v.  Beveridge,  15  Minn.  181.  May  v.  Arnold.  18  Ga.  181  :  Fairrloth  v. 
Jordan,  18  Ga.  352.  A  purchaser  is  not  required  to  search  for  incumbrances 
upon  the  premises  executed  by  his  grantor  prior  to  the  time  when  he  obtained 


532  MARKETABLE    TITLE    TO    REAL    ESTATE. 

of  the  title  in  each  case,  but  little  more  than  which  of  the  grantees 
shall  be  forced  to  an  action  on  the  covenant,  but  to  this  it  is  replied 
that  the  first  purchaser  has  no  right  by  his  negligence  to  deprive 
the  second  purchaser  of  the  estate  and  to  force  him  to  an  action  on 
the  covenant,  which,  from  the  insolvency  of  the  covenantor  or  from 
many  other  causes,  may  prove  an  unavailing  remedy.  Where  one 
of  two  innocent  persons  must  suffer  a  loss,  it  should  be  imposed 
upon  him  whose  negligence  made  the  loss  possible.  Besides,  to 
extend  the  estoppel  to  a  purchaser  of  the  after-acquired  estate, 
would  virtually  repeal  the  registry  laws  in  nearly  every  State  of  the 
Union,  or  rather  give  them  an  effect  which  they  were  not  intended 
to  have,  that  is,  to  charge  a  purchaser  with  notice  of  a  conveyance 
executed  between  parties  wTho  were  strangers  to  the  title. 

In  many  of  the  States  there  are  statutes  which  provide  in  sub- 
stance that  an  after-acquired  title  shall  pass  to  the  grantee.57  It 
does  not  appear,  however,  from  their  terms  or  from  judicial  con- 
title.  Farmers'  Loan  &  Tr.  Co.  v.  Maltby,  8  Paige  (N.  Y.),  361.  Doswell 
v.  Buchanan,  3  Leigh  (Va.),  365;  23  Am.  Dec.  280,  where  the  same  rule  was 
applied,  though  the  grantor  had  the  equitable  title.  See  Judge  HARE'S  note, 
Doe  v.  Oliver,  2  Smith's  L.  C.  700,  where  it  is  said :  "  The  strongest  argument 
against  permitting  the  covenants  or  recitals  in  a  deed  to  extend  beyond  the 
person  of  the  grantor  to  an  estate  which  he  does  not  hold  at  the  time,  is 
that  it  necessarily  tends  to  give  a  vendee  who  has  been  careless  enough  to 
buy  what  the  vendor  has  not  got  to  sell  a  preference  over  subsequent  pur- 
chasers who  have  expended  their  money  in  good  faith  and  without  being 
guilty  of  negligence.  Such  a  result  seems  to  be  at  variance  with  the  re- 
cording acts  of  the  country,  which  are  generally  held  not  to  require  an 
examination  of  the  record  prior  to  the  period  at  which  the  title  conveyed 
vested  in  the  vendor.  To  allow  a  title  to  pass  by  a  conveyance  executed  and 
recorded  before  it  is  acquired  may,  therefore,  be  a  surprise  on  subsequent 
purchasers  against  which  it  is  not  in  their  power  to  guard;  and  is  contrary 
to  the  equity  which  is  the  chief  aim  of  the  doctrine  of  estoppel,  as  moulded 
by  the  liberality  of  modern  times.  It  is,  therefore,  more  consistent  with 
reason,  as  well  as  with  principle,  to  treat  deeds  made  by  a  grantor  without 
title  as  creating  an  equity  which,  though  binding  as  between  the  original 
parties,  cannot  be  enforced  against  purchasers  without  notice.  The  unman- 
ageable character  of  estoppels,  founded  solely  on  common  law  and  .technical 
grounds,  is  a  reason  for  not  invoking  their  assistance  in  any  case  where  it 
is  not  absolutely  needed,  and  for  confining  the  operation  of  deeds  on  an 
after-acquired  interest  in  lands,  to  the  creation  of  an  equity  which  will 
bind  subsequent  grantees  with  notice  without  endangering  the  title  of  a 
bona  fide  purchaser." 

"Arizona  Comp.  L.  1877,  p.  384,  §  33;  Ark.  Mansf.  Dig.  1884,  §  642;  Cal. 
Hitts  Code,  1876,  §  6106;  Colo.  Gen.  Stats.  1883,  §  201;  Dak.  Lev.  Rev.  Code, 


ESTOPPEL  OF  THE  GRANTOB.  533 

struction,  that  they  amount  to  anything  more  than  affirmation  of 
the  existing  rule  as  it  respects  the  covenantor,  or  that  it  was  thereby 
intended  to  enlarge  the  rights  of  the  original  grantee,  as  against  a 
purchaser  of  the  after-acquired  title  without  notice.58  It  frequently 
happens  that  the  equitable  owner  of  lands,  e.  #.,  one  who  has  paid 
the  purchase  money  in  full  but  has  not  received  a  conveyance, 
sells  and  conveys,  or  mortgages  his  interests  in  the  premises,  and 
afterwards  receives  a  conveyance  of  the  legal  title,  whether  in  such 
a  case,  a  subseqiient  grantee  without  notice  of  the  rights  of  the 
purchaser  of  the  equitable  title,  would  be  estopped  to  set  up  the 
after-acquired  legal  title  seems  to  have  been  nowhere  clearly  de- 
cided.69 It  has  been  intimated  in  Georgia  that  in  such  a  case,  the 


1883,  vol.  2,  p.  883,  subd.  4;  Ga.  Rev.  Code,  1882,  §  2699;  111.  Rev.  St.  p.  279, 
J  7;  Iowa  Rev.  Code,  1884,  §  1931;  Kans.  Comp.  Laws,  1879,  p.  211,  §  5; 
Miss.  Code  1880,  §  1195;  Mo.  Rev.  St.  1879,  §  3940;  Mont.  Rev.  St.  1879,  p. 
443,  §  209;  Neb.  Comp.  St.  1885,  p.  482,  §  51;  Nev.  Comp.  L.  1873,  p.  84, 
§  261;  Wash.  Ty.  Code,  1881,  App.  25. 

"*  Mr.  Rawle  is  of  the  opinion  that  the  effect  of  these  statutes  is  to  over- 
ride any  equities  that  might  otherwise  avail  the  second  purchaser.  Covts.  for 
Title  (5th  ed.),  p.  370n.  The  Kansas  statute  (Comp.  L.  1879,  p.  211,  §  5)  is, 
perhaps,  as  unfavorable  to  the  second  purchaser  as  any.  It  provides  that 
, "  where  a  grantor,  by  the  terms  of  the  deed,  undertakes  to  convey  to  the 
grantee  an  indefeasible  estate  in  fee  simple  absolute,  and  shall  not  at  the  time 
of  such  conveyance  have  the  legal  title  to  the  estate  sought  to  be  conveyed, 
but  shall  afterwards  acquire  it,  the  legal  estate  subsequently  acquired  by  him 
shall  immediately  pass  to  the  grantee,  and  such  conveyance  shall  be  as 
effective  as  though  such  legal  estate  had  been  in  the  grantor  at  the  time  of 
the  conveyance."  It  is  to  be  observed  that  this  statute  does  not  in  terms 
'provide  that  the  original  conveyance  shall  be  effective  against  a  purchaser 
of  the  after-acquired  title  without  notice,  and  it  may  well  be  doubted  whether 
the  statute  was  so  intended. 

"Unless  in  Doswell  v.  Buchanan,  3  Leigh  (Va.),  365;  23  Am.  Dec.  280, 
where  H.,  having  only  an  equitable  estate  in  lands,  conveyed  the  same  in 
trust  to  secure  a  debt  which  deed  was  duly  recorded,  and  after  acquiring  the 
legal  title,  conveyed  to  D.  with  warranty.  It  was  held  that  the  recording 
of  the  deed  conveying  the  equitable  estate  was  not  constructive  notice  of 
that  deed  to  D.,  on  the  ground  that  the  statute  requiring  deeds  to  be  recorded, 
makes  them  void  as  to  subsequent  purchasers  without  notice  if  not  recorded, 
but  gives  them  no  additional  validity  (as  notice)  if  recorded.  The  principle 
of  this  decision  was  afterwards  affirmed  in  Virginia  by  a  statute  which 
provides :  "  A  purchaser  shall  not  be  affected  by  the  record  of  a  deed  or 
contract  made  by  a  person  under  whom  his  title  is  not  derived,  nor  by  the 
record  of  a  deed  or  contract  made  by  any  person  before  the  date  of  a  deed 
or  contract  made  to  or  with  such  person,  which  is  duly  admitted  to  record, 
and  frem  whom  the  title  of  such  person  is  derived."  Va.  Code,  1887,  §  2473. 


534  MARKETABLE    TITLE    TO    REAL   ESTATE. 

first  grantee  had  a  right  to  establish  an  equitable  title  as  against 
the  second  grantee.60  It  is  difficult  to  distinguish  such  a  case  from 
one  in  which  the  grantor  had  no  title,  legal  or  equitable,  at  the  time 
of  the  first  conveyance,  and  it  would  seem  that  in  either  case  the 
second  purchaser  being  without  notice  from  the  registry  of  the 
rights  of  the  first  purchaser,  would  not  be  estopped  to  set  up  the 
after-acquired  legal  title.  Of  course  if  the  second  grantee  has 
actual  notice  of  the  rights  of  the  first  purchaser,61  as  where  he  sees 
him  in  the  possession  of  the  estate,62  he  cannot  hold  the  subse- 
quently-acquired title  as  against  such  purchaser,  for  he  can  no 
longer  claim  to  be  a  purchaser  of  that  title  without  notice. 

If  the  purchaser  of  the  after-acquired  title  be  not  a  privy  to  the 
conveyance  under  which  the  estoppel  is  claimed  to  arise,  he  will  of 
course  hold  the  estate  as  against  the  grantee.  Thus,  where  an  heir, 
before  the  death  of  his  ancestor,  conveyed  all  of  his  interest  in  the 
ancestor's  estate,  a  purchaser  at  a  sale  made  after  descent  of  the 
property,  under  a  judgment  against  the  heir  entered  before  the  con- 
veyance, being  neither  a  party  nor  privy  to  that  conveyance,  waa 
held  not  to  be  estopped  thereby,  and  to  be  entitled  to  the  land.  In 
other  words,  an  estoppel  cannot  affect  a  purchaser  under  a  judg- 
ment against  the  grantor,  entered  prior  to  the  conveyance  creating 
the  estoppel.*3 

Creditors  of  the  grantor  are  not  purchasers,  and,  of  course,  can- 
not subject  the  after-acquired  estate  to  the  payment  of  their  debts 
as  against  the  grantee.64  A  different  rule  may  prevail  in  those 
States  in  which  lien  creditors  are  given  priority  over  an  unrecorded 
deed,  assuming  that  the  deed  to  the  grantee,  recorded  at  a  time 
when  his  grantor  had  no  title,  is  to  be  treated,  to  all  intents  and 
purposes  of  the  registry  acts,  as  an  unrecorded  deed.65 

§  215.  COMPULSORY  ACCEPTANCE  OF  AFTER-ACQUIRED 
TITLE  IH  LIEU  OF  DAMAGES.  So  long  as  a  contract  for  the  sale 
of  lands  remains  executory,  there  is  no  doubt  as  to  the  right  of  the 

•"Bevins  v.  Vanzant,  15  Ga.  521. 

"Gochenour  v.  Mowry,  33  111.  331.     Great   Falls  Ice  Co.  v.  Worater,  If 
N.  H.  412;  Wark  v.  Willard,  13  N.  H.  389. 
"Doe  v.  Dowdall,  3  Houst.    (Del.)   369. 
"Jackson  v.  Bradford,  4  Wend.    (N.  Y.)    619. 
M  Kimball  v.  Blaisdell,  5  N.  H.  533 ;  22  Am.  Dec.  476. 
"As  in  Virginia,  Guerrant  v.  Anderson.  4  Rand.   (Va.)   208. 


ESTOPPEL   OF   THE  GBANTOE.  535 

vendor,  in  most  cases  in  which  time  is  not  of  the  essence  of  the  con- 
tract, to  perfect  the  title  to  the  estate  by  purchasing  the  rights  of 
an  adverse  claimant,  and  to  compel  the  vendee  to  accept  the  title 
when  so  perfected.66  But  if  the  contract  has  been  executed  by  a 
conveyance  with  a  covenant  of  warranty,  or  a  covenant  of  seisin, 
the  grantor  cannot,  after  a  right  to  recover  substantial  damages 
for  a  breach  of  those  covenants  has  accrued  to  the  grantee,  as  where 
he  has  been  evicted  from  the  premises,  buy  in  the  rights  of  the  ad- 
verse claimant  and  require  the  grantee  to  take  the  title  so  acquired 
in  lieu  of  his  damages.67  Of  course,  as  will  be  readily  perceived, 
the  covenantee  could  have  no  object  in  rejecting  the  after-acquired 
title  and  demanding  his  damages,  unless  the  property  had  depre- 
ciated in  value,  in  which  case  the  damages,  being  measured  by  the 
consideration  money,  might  be  greater  in  amount  than  the  value 
of  the  after-acquired  title.68  As  respects  the  covenant  of  warranty, 
which  is  only  broken  by  an  eviction  from  the  premises,  there  would 
seem  to  be  no  doubt  that  the  acquisition  of  title  from  the  real  owner 
by  the  covenantor  before  an  eviction  had  occurred  would  neces- 
sarily deprive  the  covenantee  of  any  right  to  reject  that  title,  be- 
cause in  such  a  case  there  would  not  be,  and  could  never  be,  a  right 

"Ante,  §  202. 

"  Washb.  Real  Prop.  673;  Rawle  Covt.  (2d  ed.  244)  ;  Bigelow  on  Estoppel, 
p.  400.  Burton  v.  Reeds,  20  Ind.  92;  Bethell  v.  Bethell,  92  Ind.  318,  328. 
Nichols  v.  Alexander,  28  Wis.  118;  Mclnnis  v.  Lyman,  62  Wis.  191;  22 
N.  W.  Rep.  405.  In  both  of  these  cases  the  eviction  was  constructive, 
the  covenantees  never  having  gotten  possession  of  the  property  conveyed. 
Cf.  Noonan  v.  Illsey,  21  Wis.  139;  84  Am.  Dec.  742.  Blanchard  v.  Ellis, 
1  Gray  (Mass.),  199;  61  Am.  Dec.  417,  where  the  court  said:  "Supposing 
it  to  be  well  settled  that  if  a  new  title  come  to  the  grantor  before  the 
eviction  of  his  grantee,  it  would  enure  to  the  grantee,  and  not  deciding, 
because  the  case  does  not  require  it,  whether  the  grantee  even  after  eviction 
might  elect  to  take  such  new  title  and  the  grantor  be  estopped  to  deny  it, 
we  place  the  decision  of  this  case  upon  this  precise  ground,  that  where  a 
deed  of  land  has  been  made  with  covenants  of  warranty,  and  the  grantee  has 
been  wholly  evicted  from  the  premises  by  a  title  paramount,  the  grantor  can- 
not after  such  entire  eviction  of  the  grantee  purchase  the  title  paramount 
and  compel  the  grantee  to  take  the  same  against  his  will,  either  in  satis- 
faction of  the  covenant  *  *  *  or  in  mitigation  of  damages  for  the  breach 
of  it."  In  Winfrey  v.  Drake,  4  Lea  (Tenn.),  293,  it  seems  to  have  been  con- 
ceded that  the  grantor  might  perfect  the  title  in  a  suit  for  rescission  on  the 
ground  of  mistake. 

"Ante,  §  164. 


536  MARKETABLE    TITLE    TO    REAL   ESTATE. 

to  damages  against  the  covenantor.  The  covenant  of  seisin,  how- 
ever, is  broken  as  soon  as  made  if  the  covenantor  has  no  title,  and 
a  right  of  action  immediately  accrues  thereupon  to  the  covenantee.8* 
In  that  action,  unless  the  covenantee  had  been  evicted,  he  could 
recover  no  more  than  nominal  damages;  consequently,  it  would 
seem  immaterial  to  him  whether  he  were  left  to  his  action  or 
forced  to  take  the  after-acquired  title.  There  can  be  no  right  to 
recover  the  consideration  money  as  damages  so  long  as  the  cove- 
nantee remains  in  the  undisturbed  possession  of  the  estate.  It 
has  been  laid  down  by  a  learned  writer  upon  this  branch  of  the 
law  of  estoppel  that  the  effect  of  a  conveyance  with  a  covenant 
of  warranty  or  of  .seisin  is  not  to  actually  transfer  to  the  cove- 
nantee the  after-acquired  estate,  so  as  to  deprive  him  of  the 
election  to  take  that  estate,  or  recover  damages  for  the  breach 
of  covenant,  but  merely  to  rebut  any  claim  of  the  covenantor 
to  the  estate,  leaving  to  the ,  covenantee  the  option  of  proceeding 
in  equity  to  compel  a  conveyance  to  him  of  the  after-acquired 
estate,  or  of  recovering  damages  on  the  covenant.  And,  in 
order  to  give  this  position  effect,  the  same  writer  declares  that, 
upon  a  breach  of  the  covenant  of  seisin  resulting  from  a  total 
failure  of  the  title,  the  covenantee  would  have  the  option  to 
retain  the  land,  or  to  offer  to  reconvey  it  and  recover  its  con- 
sideration.70 The  objection  to  this  view  of  the  doctrine  of  the  af ter- 

"Ante,  §   116. 

"Rawle  Covt.  §§  182,  258.  Mr.  Rawle  cites  Tucker  v.  Clarke.  2  Sandf.  Ch. 
(N.  Y.)  96,  in  support  of  his  views  on  this  point.  In  that  case,  however,  the 
covenantee  had  been  constructively  evicted  from  the  premises,  having  never 
gotten  possession,  and  it  is  very  clear  that  in  a  case  of  constructive  as  well  as 
an  actual  eviction  the  covenantee  cannot  be  compelled  to  take  the  after- 
acquired  title.  Mclnnis  v.  Lyman,  62  Wis.  191.  If  it  is  intended  thereby  to 
decide  that  a  covenantee  in  the  undisputed  possession  of  the  premises  may 
practically  rescind  the  contract  by  delivering  up  the  possession  and  recovering 
back  the  purchase  money  paid,  regardless  of  the  after-acquired  title,  the  de- 
cision is  obiter  dictum.  The  case  was  a  suit  in  equity  to  enjoin  an  action 
by  the  covenantee  for  breach  of  the  covenant  of  seisin,  and  to  compel  the 
defendant  to  accept  in  lieu  of  damages  a  title  subsequently  acquired  by  the 
covenantor.  The  court  said :  "  The  executed  contract  was  that  the  com- 
plainants were  seised  of  these  lots,  and  if  they  were  not  they  should  repay 
the  consideration  money.  This  is  sought  to  be  reconsidered  and  turned  into 
a  contract  by  which,  if  it  should  ever  turn  out  that  they  were  not  seised, 
they  might  either  repay  the  consideration  or  procure  a  good  title  to  be  con- 


ESTOPPEL,   OF   THE  GEANTOR.  537 

acquired  estate  is  that  it  would,  in  every  case  of  breach  of  the 
covenant  of  seisin  in  which  the  covenantee  had  suffered  no  actual 
damage,  give  to  him  the  right  to  rescind  an  executed  contract  of 
sale  and  have  back  his  purchase  money,  though  the  outstanding  title 
had  not  been,  and  might  never  be,  asserted  against  him.  It  is  true 
that,  in  actions  to  recover  the  unpaid  purchase  money,  there  are 
in  a  number  of  cases  dicta  or  intimations  that  the  purchaser  may 
set  up  by  way  of  recoupment  the  breach  of  the  plaintiff's  covenant 
of  seisin,  as  a  defense  to  the  action,  upon  condition  that  he  recon- 
vey  the  premises  to  the  grantor,71  but  the  writer  is  not  aware  of 
any  case  in  which  this  has  been  permitted  after  the  outstanding 
title  had  been  acquired  by  the  covenantor.  There  would  seem 
to  be  no  equity  in  allowing  the  covenantee  to  rescind  his  executed 
contract,  when  he  is  in  the  possession  and  enjoyment  of  every- 
thing that  he  could  demand  under  that  contract.  Accordingly, 
it  has  been  decided  that,  upon  a  breach  of  the  covenant  of  seisin, 
from  which  the  covenantee  has  suffered  no  actual  damage,  there 
can  be  a  recovery  of  no  more  than  nominal  damages  if  the  cove- 
nantor has  gotten  in  the  outstanding  title.72 

yeyed.  It  would  have  been  a  little  more  plausible  if  there  had  been  a 
semblance  of  mutuality  about  it,  BO  that  the  defendant  might  have  coerced 
them  to  procure  a  good  title  on  discovering  the  defect.  But  there  is  no  pre- 
tense that  the  defendant  had  any  such  equity.  The  complainants'  ground 
amounts  to  this:  If  the  lots  had  been  worth  two  or  three  times  the  price 
which  the  defendant  paid  for  them,  then  they  could  set  up  the  outstanding 
title,  deprive  the  defendant  of  his  speculation,  and  throw  him  upon  the  cov- 
enants in  his  deed,  which  would  restore  to  him  the  consideration  paid.  If, 
on  the  other  hand,  the  lots  should  depreciate  very  much,  the  complainants 
would  procure  the  outstanding  title  for  him,  and  retain  the  price  which  he 
paid.  There  is  no  equity  or  fairness  in  this,  and  the  court  cannot  grant  the 
relief  prayed  by  the  bill  without  first  making  such  a  contract  for  the  parties; 
a  contract  which  they  never  did  make,  and,  I  presume,  never  would  have 
made  if  any  failure  of  title  had  been  supposed  probable  when  the  conveyance 
was  executed." 

"Post,  §  264. 

W3  Sedg.  Dam.  (8th  ed.)  $  978.  Baxter  v.  Bradbury,  20  Me.  260;  37  Am. 
Dec.  49.  Reese  v.  Smith,  12  Mo.  344.  Cotton  v.  Ward,  3  T.  B.  Mon.  (Ky.) 
312;  Burke  v.  Beveridge,  15  Minn.  208.  Blackmore  v.  Shelby,  8  Humph. 
(Tenn.)  439.  Burton  v.  Reeds,  20  Ind.  02.  Farmers'  Bank  v.  Glenn,  68  N.  C. 
39;  Hughes  v.  McNider,  90  N.  C.  248.  In  this  case  the  vendor  was  allowed, 
after  conveying  the  property,  to  perfect  the  title  by  paying  off  incumbrances. 
Cornell  v.  Jackson,  3  Cush.  (Mass.)  506.  McCarthy  v.  Leggett,  3  Hill 
(N.  Y.),  134.  King  v.  Gilson,  32  111.  349;  83  Am.  Dec.  269.  Morrison  v. 


538  MARKETABLE    TITLE    TO    REAL    ESTATE. 

But  the  defendant  cannot  show  title  acquired  by  himself  after 
action  brought.  The  rights  of  the  parties  must  be  determined 
according  to  their  existence  at  the  time  when  the  action  was  com- 
menced.73 If  the  covenantee  recover  a  judgment  for  damages  for  a 
breach  of  the  covenants  of  warranty  or  of  seisin,  he  cannot  after- 
wards claim  the  benefit  of  a  title  acquired  by  the  covenantee  after 
the  covenant  was  made.74  If  the  vendor  was  guilty  of  fraud  in 
respect  to  the  title,  the  grantee  cannot  be  required  to  take  an  after- 
acquired  title,  and  this  upon  the  same  principle  that  a  vendor  guilty 
of  fraud  will  not,  even  where  the  contract  is  executory,  be  permit- 
ted to  perfect  the  title.75  The  acceptance  of  a  conveyance  is  not,  as 

Underwood,  20  N.  H.  369;  Fletcher  v.  Wilson,  1  Sm.  &  M.  Ch.  (Miss.)  376. 
Hartley  v.  Costa,  40  Kans:  552;  20  Pac.  Rep.  208,  semble.  Building  Co. 
v.  Fray,  96  Va.  559;  32  S.  E.  Rep.  58.  Middlebury  College  v.  Cheney,  1  Vt. 
336.  In  Cross  v.  Martin,  46  Vt.  14,  it  was  said  that  the  after-acquired  title 
enured  to  the  grantee  in  discharge  of  the  grantor's  covenants,  but  the  question 
whether  the  grantor  must  take  such  title  in  lieu  of  damages  was  not  before 
the  court.  Knowles  v.  Kennedy,  82  Pa.  St.  445.  McLennan  v.  Prentice,  85 
Wis.  427.  Marsh  v.  Sheriff,  (Md.)  14  Atl.  Rep.  664.  Kimball  v.  West, 
15  Wall.  (U.  S.)  377.  Vote,  that  in  Cochran  v.  Pascault,  54  Md.  1,  it  was 
held  that  under  a  covenant  for  further  assurance  the  grantor  had  the  right 
to  get  in  an  outstanding  title  and  tender  a  new  deed  to  the  grantee  removing 
the  objection  to  the  title,  and  that  the  grantee  would  be  compelled  to  accept 
such  deed. 

"Morris  v.  Phelps,  5  Johns.  (N.  Y.)  49;  4  Am.  Dec.  323.  Fitzhugh  v. 
Croghan,  2  J.  J.  Marsh.  (Ky.)  439;  19  Am.  Dec.  139.  But  see  Noonan  T. 
Illsley,  21  Wis.  147,  where  the  point  was  questioned,  and  King  v.  Gilson,  32 
111.  348;  83  Am.  Dec.  269. 

"Bank  v.  Mersereau,  7  Barb.  Ch.  (N.  Y.)  528,  572.  Porter  v.  Hill,  9  Mass. 
34;  6  Am.  Dec.  22;  Stinson  v.  Sumner,  9  Mass.  143. 

"McWhirter  v.  Swaffer,  6  Baxt.  (Tenn.)  42;  Woods  v.  North,  6  Humph. 
(Tenn.)  310;  44  Am.  Dec.  312;  Blackman  v.  Shelby,  8  Humph.  (Tenn.)  439. 
The  reasons  for  this  rule  are  clearly  stated  as  follows  in  Alvarez  v.  Brannan, 
7  Cal.  509 ;  68  Am.  Dec.  274 :  "  Where  there  is  no  fraud,  and  the  vendor  binds 
himself  to  convey  a  certain  title,  and  afterwards  discovers  a  defect  which  he 
can  cure,  and  thus  convey  to  the  purchaser  all  the  latter  bargained  for,  it  is 
obviously  just  that  the  vendor  should  be  allowed  to  do  so.  But  when  a 
party  misrepresents  material  facts,  which  he  knows  to  be  untrue,  the  Taw 
will  not  permit  him  to  derive  any  benefit  from  the  transaction.  The  injured 
party  has  a  right  to  elect  to  rescind  the  contract  and  recover  the  purchase 
money,  or  he  may  proceed  upon  the  covenants  in  his  deed.  In  case  he  elect 
to  rescind,  he  must  place  the  vendor  in  the  same  position  he  occupied  at  the 
date  of  the  transaction.  If  the  rule  were  otherwise,  it  would  offer  a  reward 
for  injustice.  A  party  knowing  he  had  no  title  could  sell,  and,  if  the  property 


ESTOPPEL   OF  THE  GRANTOB.  539 

a  general  rule,  a  merger  of  the  right  to  rescind  the  contract  on  the 
ground  of  fraud.76 

§  216.  WHAT  COVENANTS  WILL  PASS  THE  AFTER- ACQUIRED 
TITLE.  A  covenant  of  warranty  will,  in  every  case  in  which  the 
grantor  undertakes  to  convey  an  indefeasible  estate,  and  not  merely 
such  interest  as  he  may  have,  estop  him  from  afterwards  holding  an 
after-acquired  estate  in  the  premises,  as  against  his  grantee.  The 
reason  is  to  avoid  circuity  of  action;77  the  passing  of  the  after- 
acquired  estate  to  the  grantee  satisfies  the  grantor's  covenant  and 
takes  away  the  covenantee's  right  of  action,  unless  he  has  been 
evicted  from  the  premises.78  A  covenant  of  seisin  will  also  estop 
the  grantor  from  setting  up  the  after-acquired  title;79  except  in 
certain  of  the  New  England  States,  in  which  it  is  held  that  this 
covenant  is  a  mere  admission  that  the  covenantor  is  seised  de  facto, 
and  that  there  is  no  estoppel  because  there  is  no  right  of  action  if 
the  grantor  was  actually,  though  wrongfully  seised.80  The  cove- 
nants for  good  right  to  convey  and  for  quiet  enjoyment  will  trans- 
mit the  after-acquired  title.81  The  covenant  of  further  assurance 
is  also  as  effectual  for  that  purpose  as  the  covenant  of  warranty, 
since  the  covenantor  thereby  engages  to  convey  the  after-acquired 

declined  in  price,  he  could  purchase  the  outstanding  title  for  less  than  he 
received  and  tender  it  to  the  purchaser;  and,  if  the  property  advanced,  all  he 
would  be  required  to  do  would  be  to  refund  the  purchase  money  with  legal 
interest.  All  the  wrongs  would  be  on  his  side,  and  yet  he  would  enjoy  all 
the  advantage  of  the  market.  The  risk  of  loss  would  be  entirely  thrown  upon 
the  innocent,  while  all  the  chance  gain  would  be  on  the  side  of  the  guilty 
party.  If  such  be  the  legitimate  result  of  the  rule,  there  must  be  something 
radically  wrong  in  the  rule  itself.  A  rule  of  law  that  rewards  the  guilty 
an<l  punishes  the  innocent  would  defeat  the  noble  ends  aimed  at  by  the  gov- 
ernment. But,  as  the  rule  of  law  is  different,  the  innocent  party  had  his 
election  either  to  take  the  title,  if  it  can  be  had  of  the  vendor,  or  to  recover 
the  purchase  money  with  the  interest." 

"Post,  §§  270,  276. 

"Baxter  v.  Bradbury,  20  Me.  260;  37  Am.  Dec.  49.  Ruggles  v.  Barton,  13 
Gray  (Mass.),  506.  Dickinson  v.  Talbot,  14  B.  Mon.  (Ky.)  65,  and  cases 
cited,  p.  493,  note  2. 

"Rawle  Covts.  for  Title   (5th  ed.),  §  250. 

"Pratt  v.  Pratt,  96  111.  184.     Irvine  v.  Irvine,  9  Wall.    (U.  S.)   618. 

"Allen  v.  Say  ward,  5  Greenl.  (Me.)  227.  Doane  v.  Willcutt,  5  Gray 
(Mass.),  328;  66  Am.  Dec.  369. 

«  Foss  v.  Strachn,  42  N.  H.  40.     Weightman  v.  Reynolds,  24  Miss.  675,  680. 


540  MARKETABLE    TITLE    TO    REAL   ESTATE. 

title,  and  may  be  in  equity  compelled  so  to  do.K  The  covenants 
of  seisin,  against  incumbrances.  and  for  quiet  enjoyment  implied 
from  the  words  "  grant,  bargain  and  sell,"  have  been  held  to  act 
as  an  estoppel  j83  so,  also,  a  covenant  of  warranty  implied  from  those 
words.84  But  in  Missouri,  the  covenants  of  seisin,  against  incum- 
brances, and  for  futher  assurance  implied  by  statute  from  like 
words,  have  been  held  insufficient  to  estop  the  grantor,  upon  the 
ground  that  they  amount  to  nothing  more  than  a  quit  claim.85  It 
seems  that  the  warranty  implied  from  a  partition  will  not  pass  an 
after-acquired  estate.86.  In  England  covenants  for  title  are  not 
sufficient  to  create  an  estoppel  against  the  grantor.  There  must  be 
a  precise  averment  in  the  deed  that  he  is  seised  of  the  estate  pur- 
ported to  be  conveyed.87 

§  217.  ESTOPPEL  NOT  DEPENDENT  ON  AVOIDANCE  OF  CTE- 
CU1TY  OF  ACTION.  The  following  instances  in  which  the  doctrine 
of  estoppel  has  been  applied  when  there  was  no  right  of  action  on 
the  grantor's  covenants  clearly  show  that  the  doctrine  of  estoppel 
and  transfer  of  the  after-acquired  estate  does  not  depend  altogther 
on  avoidance  of  circuity  of  action.  Those  instances  are  the  estop- 
pel of  married  women,  of  the  sovereign  power,  of  bankrupts,  and 
of  covenantors  against  whom  no  action  can  be  maintained  on  the 
covenant  by  reason  of  the  Statute  of  Limitations,88  to  which  may 
be  added  those  cases  in  which  the  grantor,  undertaking  to  convey 
an  estate  of  a  particular  quality  or  description,  is  held  to  be  estop- 

"2  Sugd.  Vend.  (8th  Am.  ed.)  294;  3  Washb.  Real  Prop.  667  (4th  ed.  479.) 
Fitch  v.  Fitch,  8  Pick.  (Mass.)  482.  Bennett  v.  Waller,  23  111.  183  (97). 
Pierce  v.  Milwaukee  R.  Co.,  24  Wis.  551,  553;  1  Am.  Rep.  203.  Hope  v. 
Stone,  10  Minn.  141  (114). 

»De  Wolf  v.  Haydn,  24  111.  525;  King  v.  Gibson,  32  HI.  352;  83  Am.  Dec. 
269;  Pratt  v.  Pratt,  96  111.  184,  197. 

*•  Blakeslee  v.  Insurance  Co.,  57  Ala.  205. 

"Bogy  v.  Shoab,  13  Mo.  365;  Chauvin  v.  Wagner,  18  Mo.  53;  Gilson  v. 
Chouteau,  39  Mo.  566;  Butcher  v.  Rogers,  60  Mo.  138. 

••Rawle  Covte.  (5th  ed.)  pp.  381,  450.  Walker  v.  Hall,  15  Ohio,  355;  36 
Am.  Dec.  482. 

*  Heath  v.  Creelock,  L.  R.,  10  Ch.  30.  Gen.  Finance  Co.  v.  Liberator,  etc., 
Society,  L.  R.,  10  Ch.  Div.  15. 

"Cole  v.  Raymond,  9  Gray  (Mass.),  217,  the  court  saying  that  while  the 
covenant  is  a  personal  contract  to  be  enforced  by  personal  action,  in  which 
the  usual  incidents  to  a  personal  action  will  be  applied,  the  covenant  is  not 
thereby  affected  in  its  broader  application  and  effect  as  a  covenant  real.  Care 
must  be  taken  to  distinguish  this  decision  from  those  which  hold  that  the 


ESTOPPEL  OF   THE  GRANTOR.  541 

ped  from  setting  up  an  after-acquired  title,  even  though  the  con- 
veyance contained  no  covenants  for  title.  The  grantor  is  as  much 
bound  by  the  recitals  in  his  deed  as  by  formal  covenants.89  In  some 
of  the  States  it  is  provided  that  a  fee-simple  conveyance  shall 
operate  to  pass  a  subsequently  acquired  estate  of  the  grantor.90 

Upon  the  question  whether  a  married  women  is  estopped  by  her 
covenants  or  conveyance  from  setting  up  against  her  grantee  an 
after-acquired  title  to  the  estate  there  is  a  conflict  of  authority. 
The  rule  which  seems  to  prevail  in  most  of  the  States  is  that  she  is 
not  estopped  ;91  principally  for  the  reason  that  she  cannot  bind  her- 
self by  her  covenants,  and  that,  consequently,  there  is  no  room  for 
application  of  the  doctrine  of  estoppel  in  order  to  prevent  a  cir- 
cuity  of  action.92  There  are  decisions,  however,  that  it  is  imrna- 

title  of  a  disseisor,  which  has  been  perfected  by  the  statute  limiting  the  time 
within  which  lands  may  be  recovered,  will  not  enure  to  the  benefit  of  the  dis- 
seisee-covenantee.  Ante,  §  208. 

"Post,  §  218.  Denn  v.  Cornell,  3  Johns.  Cas.  (N.  Y.)  174.  Carver  v.  Jack- 
son, 4  Pet.  (U.  S.)  87.  Flanary  v.  Kane,  102  Va.  547;  46  S.  E.  Rep.  681. 
Summerfield  v.  White,  54  W.  Va.  311;  46  S.  E.  Rep.  154. 

"Ante,  §  214.  Clark  v.  Baker,  14  Cal.  612;  76  Am.  Dec.  449.  Bernardy 
v.  Mortgage  Co.,  (S.  Dak.)  98  N.  W.  Rep.  167. 

"  Bishop  Married  Women,  §  603.  Hempstead  v.  Easton,  33  Mo.  142.  Hobbs 
v.  King,  2  Met.  (Ky.)  142.  Prior  v.  Loeb,  119  Ala.  450;  24  So.  Rep.  714. 
Gonzales  v.  Hukil,  49  Ala.  260;  20  Am.  Rep.  282.  Wadleigh  v.  Glines,  6 
N.  H.  17;  23  Am.  Dec.  705.  Goodenough  v.  Fellows,  53  Vt.  102.  In  Lowell 
v.  Daniels,  2  Gray  (Mass.)  161;  61  Am.  Rep.  448,  it  was  held  that  a  married 
woman  could  not  be  estopped  by  her  acts  in  pais,  even  though  fraudulent, 
from  setting  up  an  after-acquired  title  to  the  land.  A  party  who  is  incapable 
of  conveying  by  deed  cannot  be  barred  by  an  estoppel  in  pais.  But  where  a 
married  woman,  while  she  had  only  an  equitable  estate  in  certain  lands,  exe- 
cuted a  deed  of  trusl  upon  it  jointly  with  her  husband,  and,  after  the  deed  of 
trust  had  been  foreclosed,  obtained  a  deed  from  her  vendor  conveying  the 
legal  title,  it  was  held  that  she  could  not  set  up  such  title  against  the  pur- 
chaser under  the  deed  of  trust.  She  would  not  be  estopped  to  set  up  against 
him  an  after-acquired  title  paramount  to  the  right  conveyed  by  her  in  trust, 
but  the  legal  title  received  by  her  from  her  vendor  was  in  equity  subordinate 
to  the  right  so  conveyed,  and  could  not  avail  her  as  an  after-acquired  title; 
Barker  v.  Circle,  60  Mo.  258. 

"Jackson  v.  Vanderheyden,  17  Johns.  (N.  Y.)  167;  8  Am.  Dec.  378,  a  lead- 
ing case;  Carpenter  v.  Schermerhom,  2  Barb.  Ch.  (N.  Y.)  314;  Martin  v. 
Dwelly,  6  Wend.  (N.  Y.)  14;  21  Am.  Dec.  245;  Grout  v.  Townsend,  2  Hill 
(N.  Y.),  554.  Edwards  v.  Davenport,  4  McCr.  (U.  S.)  34.  Teal  v.  Woodworth, 
3  Paige  (N.  Y.),  470.  In  Thompson  v.  Merrill,  58  Iowa,  419,  it  was  held  that 
a  statute  providing  that  a  married  woman  should  not  be  liable  on  her  cove- 
nants in  a  conveyance  of  the  husband's  lands  relieved  her  as  well  of  liability 
on  her  covenants  by  way  of  estoppel  as  for  damages. 


542  MARKETABLE    TITLE    TO    REAL   ESTATE. 

terial  whether  the  deed  was  with  or  without  warranty,  there  being 
no  estoppel  in  either  case.93  The  mere  fact  that  she  joined  in  a 
conveyance  for  the  purpose  of  relinquishing  her  dower  will  not 
estop  her  from  setting  up  the  after-acquired  title.94  Nor  will  a 
statute  authorizing  her  to  convey  have  that  effect.93. 

In  several  of  the  States  it  has  been  held  that  a  married  woman 
cannot  set  up  a  subsequently-acquired  title  against  her  grantee, 
even  though  she  is  not  answerable  in  damages  for  a  breach  of  her 
covenants.96  Such  decisions  necessarily  proceed  upon  the  principle 
that  a  grantor  shall  not,  in  equity,  be  permitted  to  repudiate  his 
own  deed.  Upon  the  same  principle  it  has  been  held  that  a  married 
woman  is  as  effectually  estopped  by  a  deed  without  covenants  as  if 
the  deed  contained  them.97  She  is  estopped  from  setting  up  her 
own  title  existing  at  the  time  of  the  conveyance;  otherwise,  the 
statutes  permitting  her  to  convey  would  be  rendered  nugatory.98 
In  those  States  in  which  a  married  woman  is  permitted  to  bind 
her  separate  estate  by  her  contracts  to  the  same  extent  and  in  the 
same  manner  that  a  married  man  might,  her  property  is  bound  by 
her  covenant  of  warranty,  and  by  such  covenant  she  is  estopped 
from  setting  up  an  after-acquired  title  to  the  property.99  If  the 

"Den  v.  Demarest,  1  Zab.  (N.  J.)  541.  See,  also,  the  remarks  of  McCRABY, 
J.,  in  Edwards  v.  Davenport,  4  McCr.  (U.  S.)  34.  Jackson  v.  Vanderheyden, 
17  Johns.  (N.  Y.)  167;  8  Am.  Dec.  378.  Raymond  v.  Holden,  2  Cush.  (Mass.) 
264,  270.  Griffin  v.  Sheffield,  38  Miss.  359,  393;  77  Am.  Dec.  646.  Strawn  v. 
Strawn,  50  111.  33.  State  v.  Kemmerer,  15  S.  Dak.  504;  90  N.  W.  Rep.  150. 

M  O'Neill  v.  Vanderberg,  25  Iowa,  107.  Whether  she  would  be  estopped  if 
the  conveyance  were  of  her  own  land,  quaere.  Childs  v.  McChesney,  20  Iowa, 
431.  In  Schaffner  v.  Grutzmachen,  6  Iowa,  137,  it  was  suggested  that  to 
avoid  any  question  as  to  estoppel  the  wife  should  not  join  in  the  body  of  the 
deed,  but  should  appear  only  in  the  "  in  testimonium  "  clause. 

"Dominick  v.  Michael,  4  Sandf.  (N.  Y.  S.  C.)  423. 

"Fowler  v.  Shearer,  7  Mass.  14;  Colcord  v.  SAvan,  7  Mass.  291;  Nash  v. 
Spofford,  10  Met.  (Mass.)  192;  43  Am.  Dec.  425;  Doane  v.  Willcutt,  5  Gray 
(Mass.),  328,  332;  66  Am.  Dec.  364;  Knight  v.  Thayer,  125  Mass.  25.  Massie 
v.  Sebastian,  4  Bibb  (Ky.),  436.  But  see  Hobbs  v.  King,  supra.  Hill  v.  West, 
8  Ohio,  222;  21  Am.  Dec.  442;  Farley  v.  Eller,  29  Ind.  322;  Beal  v.  Beal,  79 
Ind.  280,  obiter. 

"  Graham  v.  Meek,  1  Oreg.  328. 

"King  v.  Rea,  56  Ind.  1.  Wadleigh  v.  Glines,  61  N.  H.  17;  23  Am.  Dec. 
705.  Summerfield  v.  White,  54  W.  Va.  311;  46  S.  E.  Rep.  154. 

"Cooper  v.  Burns,  133  Fed.  Rep.  398. 


ESTOPPEL   OF   THE  G KAN  TOE.  543 

deed  does  not  show  on  its  face  her  ownership  of  the  land  conveyed, 
the  fact  may  be  shown  by  parol.1 

A  release  of  a  contingent  right  of  dower  by  a  married  woman 
cannot  operate  as  a  conveyance  of  an  existing  or  after-acquired 
estate  in  the  premises  by  estoppel  or  otherwise.  Such  a  deed, 
being  insufficient  to  pass  an  existing  estate,  cannot  have  that  oper- 
ation by  way  of  estoppel.2 

While  covenants  for  title  cannot  be  required  from  the  State  or 
sovereign  power,  and  while,  if  made,  there  can  be  no  action  for  the 
breach  of  them,  yet,  according  to  the  weight  of  authority  in  the 
United  States,  such  covenants,  if  contained  in  a  grant  by  the  State, 
will  estop  her 'from  claiming  the  land  afterwards  as  against  the 
grantee  and  his  assigns.  Therefore,  where  the  State  granted  lands 
to  an  alien  with  warranty,  it  was  held  that  upon  the  death  of  the 
grantee  she  was  estopped  to  set  up  the  alienage  of  the  grantee 
or  of  his  heirs,  as  ground  of  escheat."  The  same  effect  has  been 
given  to  recitals  by  the  government  in  public  grants,  and  other  sol- 
emn instruments.4  In  several  cases,  however,  it  has  been  held 
that  the  doctrine  of  estoppel  has  no  application  to  acts  of  the 
sovereign  power.5  A  bankrupt  is  estopped  to  set  up  an  after- 
acquired  title  as  against  his  covenants,*  or  as  against  his  deed  with- 

1  Cooper  v.  Burns,  133  Fed.  Rep.  398. 

1  Burston  v.  Jackson,  9  Oreg.  275. 

'Commth.  v.  Andre,  3  Pick.    (Mass.)    224. 

'People  v.  Society,  2  Paine  (U.  S.),  557;  Menard  v.  Massey,  8  How.  (U.  S.) 
293,  313.  Magee  v.  Hallett,  22  Ala.  718.  Nieto  v.  Carpenter,  7  Cal.  527. 
Commth.  v.  Pejepscut,  10  Mass.  155. 

•Taylor  v.  Shufford,  4  Hawks  (N.  C.),  116;  15  Am.  Dec.  512;  Candler  v. 
Lunsford,  4  Dev.  &  Bat.  (N.  C.)  407;  Wallace  v.  Maxwell,  10  Ired.  (N.  C.) 
112;  51  Am.  Dec.  380.  There  were  no  covenants  in  any  of  these  cases.  In  St. 
Louis  Refrigerator  Co.  v.  Langley,  66  Ark.  48;  51  S.  W.  Rep.  68,  it  was 
held  that  an  act  providing  that  an  after-acquired  title  should  pass,  under  the 
prior  conveyance,  immediately  to  the  grantee,  did  not  apply  to  conveyances 
by  the  State,  the  State  not  being  expressly  mentioned  in  the  act. 

•Chamberlain  v.  Meeder,  16  N.  H.  381.  Gregory  v.  Peoples,  80  Va.  355.  In 
Bush  v.  Cooper,  26  Miss.  599;  59  Am.  Dec.  270;  18  How.  (U.  S.)  82,  it  ap- 
peared that  the  covenants  in  the  bankrupt's  deed  were  not  broken  until  after 
the  discharge  in  bankruptcy,  and  there  being  no  right  of  action  on  the  cove- 
nant at  the  time  of  the  discharge,  and  no  claim  for  liability  on  the  covenant 
provable  in  bankruptcy,  it  was  held  that  the  bankrupt  was  estopped  to  set  up 
the  after-acquired  title. 


544  MARKETABLE    TITLE    TO   SEAL   ESTATE. 

out  covenants,7  notwithstanding  his  discharge.  If  the  deed  contain 
covenants  it  is  apprehended  that  the  same  rule  applies,  whether 
there  had  been,  or  had  not  been,  a  breach  of  the  covenants  at  the 
time  of  the  discharge,  since  the  estoppel  does  not  depend  upon 
the  personal  liability  of  the  covenantor  for  damages.8 

§  218.  MERE  QUIT  CLAIM  DOES  NOT  OPERATE  AN  ESTOPPEX. 
As  a  general  rule  a  mere  quit  claim  of  all  the  grantor's  interest  in 
the  premises,  without  covenants  for  title,  will  not  estop  him  from 
setting  up  an  after-acquired  title  as  against  the  grantee.9  And  if 

7  Stewart  v.  Anderson,  10  Ala.  504;  Dorsey  v.  Gassaway,  2  Harr.  &  J.  (Md. ) 
402 ;  3  Am.  Dec.  557,  where,  however,  the  question  arose  in  a  controversy  as  to 
the  title  of  personal  property. 

8  Gregory  v.  Peoples,  80  Va.  356,  where  it  was  said  by  LEWIS,  P. :  "  It  was 
claimed  that  by  his  discharge  in  bankruptcy  H.  was  relased  from  the  obliga- 
tion of  his  covenant  to  warrant  the  title  to  the  land  conveyed  by  him,  and 
that,  consequently,  the  subsequent  conveyance  of  the  legal  title  to  him  did  not 
enure  to  the  benefit  of  his  grantee.     This  contention  would  be  well  founded  if 
the  case  of  the  appellant  rested  solely  on  the  personal  liability  of  H.  growing 
out  of  his  covenant.    But  it  does  not.    Such  a  covenant  is  not  only  one  running 
with  the  land,  for  the  breach  of  which  the  covenantor  is  liable  in  an  action 
for  damages,  but  is  something  more.     By  its  operation  a  paramount  title, 
subsequently  acquired  by  him,  enures  to  the  benefit  of  the  covenantee,  and  in 
equity  he  is  estopped  from  asserting  that  any  outstanding  title  existed  incon- 
sistent with  what  he  undertook  to  convey.    It  has,  therefore,  been  held  that  a 
discharge  in  bankruptcy,  while  effectual  to  release  the  covenantor  from  lia- 
bility in  an  action  for  a  breach  of  the  covenant,  does  not  at  all  affect  the 
estoppel.    This  is  on  the  ground  that,  as  the  release  is  by  force  ol  the  statute, 
and  not  by  the  act  of  the  covenantee,  or  those  claiming  under  him,  no  greater 
effect  will  be  given  to  it  than  is  warranted  by  the  term  of  the  statute;  and 
for  the  further  reason  that  existing  personal  liability  is  not  necessary  to  work 
an  estoppel,  and,  consequently,  there  is  no  necessary  connection  between  the 
personal  liability  of  the  debtor  on  his  covenant  and  the  estoppel  which  arises 
therefrom."     The  case  does  not  show  whether  the  breach  of  warranty  took 
place  before  or  after  the  discharge  in  bankruptcy,  and  it  may  be  that  the 
foregoing  observations  are,  to  some  extent,  obiter  dicta. 

•Co.  Litt.  §  446,  p.  265,  a.  b.;  Bigelow  Estoppel,  ch.  11,  §  4;  Rawle  Covt. 
247;  2  Washb.  Real  Prop.  665.  McCracken  v.  Wright,  14  Johns.  (N.  Y.)  194; 
Jackson  v.  Hubble,  1  Cow.  (N.  Y.)  613;  Jackson  v.  Winslow,  9  Cow.  (N.  Y.) 
18;  Jackson  v.  Peek,  4  Wend.  (N.  Y.)  302;  Pelletreau  v.  Jackson,  11  Wend. 
(N.  Y.)  119,  distinguishing  Jackson  v.  Bull,  1  Johns.  Cas.  (N.  Y.)  81,  and 
Jackson  v.  Murray,  12  Johns.  (N.  Y.)  201,  in  which  it  did  not  appear  that 
the  deeds  were  without  warranty.  Edwards  v.  Varick,  5  Den.  (N.  Y.)  664, 
702;  Sparrow  v.  Kingman,  1  Const.  (N.  Y.)  242,  247;  Jackson  v.  Littell,  56 
N.  Y.  108;  Cramer  v.  Benton,  64  Barb.  (N.  Y.)  524.  Boswell  v.  Buchanan,  3 
Leigh.  (Va.)  365;  23  Am.  Dec.  280;  Wynn  v.  Harman,  5  Grat.  (Va.)  157. 
Comstock  v.  Smith,  13  Pick.  (Mass.)  116;  23  Am.  Dec.  670.  Hagensick  v. 
Castor,  53  Neb.  495;  73  N.  W.  Rep.  932;  Troxell  v.  Stevens,  57  Neb.  329;  77 


ESTOPPEL   OF   THE   GRANTOR.  545 

the  grantor  warrant  the  title  specially,  the  subsequently-acquired 
estate  will  not  pass  to  the  grantee  if  it  came  to  the  grantor  through 

N.  W.  Rep.  781.    The  assignment  of  a  mortgage  by  deed  without  covenants  of 
warranty,  does  not  estop  the  grantor  to  set  up  an  after-acquired  title  to  the 
mortgaged  premises.    Merritt  v.  Harris,  102  Mass.  326;  Weed  Machine  Co.  v. 
Emerson,  115  Mass.  554.     McBride  v.  Greenwood,   11  Ga.  379;   Morrison  v. 
Whitesides,  116  Ga.  459;  42  S.  E.  Rep.  729;  Taylor  v.  Wainman,  116  Ga.  495; 
43  S.  E.  Rep.  58.     Kent  v.  Watson,  22  W.  Va.  568.     Simpson  v.  Greeley,  8 
Kans.  586;  Bruce  v.  Luke,  9  Kans.  201;   12  Am.  Rep.  491;   Scoffins  v.  Grand- 
staff,  12  Kans.  470;  Young  v.  Clippinger,  14  Kans.  148,  where  the  grantor  not 
only  quit-claimed  his  present  interest  but  any  that  he  might  have  in  the  future, 
and  undertook  to  defend  the  property  against  all  claims  if  any  should  after- 
wards be  asserted  against  it.    Ott  v.  Sprague,  27  Kans.  624.    Harden  v.  Collins, 
8  Nev.  49.    Demarest  v.  Hooper,  2  Zab.  (N.  J.  L.)  620;  Howe  v.  Harrington, 
18  N.  J.  Eq.  496;  Smith  v.  De  Russy,  29  N.  J.  Eq.  407.    Dart  v.  Dart,  7  Conn. 
250.    Tillotson  v.  Kennedy,  5  Ala.  413;  39  Am.  Dec.  330.    Morrison  v.  Wilson, 
30  Cal.  344;  Cadiz  v.  Majors,  33  Cal.  288;  Quivey  v.  Baker,  37  Cal.  465.    Gib- 
son v.  Chouteau,  39  Mo.  536;  Bogy  v.  Shoab,  13  Mo.  365;  Butcher  v.  Rogers, 
60  Mo.  138;  Kimmer  v.  Benna,  70  Mo.  52,  68.    Kinsman  v.  Loomis,  11  Ohio, 
475.     Frink  v.   Darst,   14  111.   304;    58  Am.   Dec.   55,  overruling   Frisby  v. 
Ballance,  2  Gil.    (111.)    141,  both  cases  being  ejectment  founded  on  the  same 
quit-claim  deed.     In  Bennett  v.  Waller,  23  111.  97   (1st  ed.  182),  it  was  held 
that  the  rule  stated  in  the  text  did  not  apply  if  the  quit  claim  contained  a 
covenant  for  further  assurance.     It  is  now  declared  by  statute  in  that  State 
that  a  quit  claim  shall  not  pass  an  after-acquired  title.     R.  S.  1883,  ch.  30, 
S   10,  p.  280.     Avery  v.  Aikins,  74  Ind.  283;   Locke  v.  White,  89  Ind.  492. 
Sweetser  v.  Lowell,  33  Me.  452.     In  Coal  Creek  Mining  Co.  v.  Ross,  12  Lea 
(Tenn.),  5,  ft  was  said  that  if  the  special  warranty  was  of  the  title  to  the 
land,  and  not  merely  of  an  existing  or  limited  interest  therein,  the  grantor 
would  be  estopped.     In  Mississippi  it  is  provided  by  statute  that  a  deed  of 
quit  claim  an'd  release  shall  estop  the  grantor  and  his  heirs  from  asserting  a 
subsequently-acquired  title.    Code,  1889,  §  1195.     Before  this  statute  the  rule 
was  as  stated  in  the  text.     Mitchell  v.  Woodson,  37  Miss.  578.     The  reasons 
for  the  rule  were  thus  explained  in  Western  Min.  &  Mfg.  Co.  v.  Peytona  Coal 
Co.,  8  W.  Va.  449 :  "  If  then,  at  the  time  the  grantor  executes  the  covenant 
of  special  warranty,  the  title  to  the  land  is  in  a  third  person,  not  because 
of  any  act  of  default  of  the  covenantor,  and  such  person  afterwards  asserts 
and  enforces  the  title  against  the  covenantee,   the  covenant   is  not  thereby 
broken,  and  the  covenantor  is  not  in  any  way  responsible.     The  covenantee 
pays  nothing  for  the  actual  title,  but  pays  only  for  the  claim  of  the  cove- 
nantor together  with  the  covenant.     No  duty  rests  on  the  covenantor  to  pro- 
cure the  title  for  the  benefit  of  the   covenantee,  or  at  all   to  protect  him 
against,  or  indemnify  him  for,  the  assertion  and  enforcement  of  the  title,  and 
his  consequent  eviction.     The   title  in  the   third  person   may,  without  the 
agency  of  the  covenantor,  descend  or  otherwise  come  to  him.     Or  it  may  be 
important  to  the  interest  of  himself  or  others,  that  he  should  purchase  the 
land,  and  accordingly  he  may  purchase  it.     Such  a  purchase  cannot  damage 

35 


546  MARKETABLE    TITLE    TO    EEAL   ESTATE. 

a  defect  of  title  not  embraced  by  his  covenant.10  Thus,  the  grantor 
may  buy  in  a  title  paramount  to  that  under  which  he  held,  and  the 
title  so  acquired  will  not  enure  to  his  grantee,  but  he  cannot  ac- 
quire the  very  title  which  he  warranted,  and  hold  it  against  his 
grantee.11  The  reason  why  no  estoppel  arises  under  a  mere  quit 
claim,  pure  and  simple,  is  partly  because  there  is  no  right  of  action 
against  the  grantor,  if  the  estate  be  lost  to  one  having  a  paramount 
title,  and  consequently  no  occasion  for  the  application  of  the  doc- 
trine of  estoppel  to  prevent  circuity  of  action.12  There  is  no  in- 
justice in  preventing  the  passage  of  the  after-acquired  estate  to  the 
grantee,  where  the  grantor  merely  releases  whatever  present  claim 
or  interest  he  may  have,  for,  presumably,  the  consideration  of  the 
conveyance  was  commensurate  only  with  that  interest.13  If  it 
should  appear  that  the  consideration  paid  by  the  grantee  was  the 
full  value  of  the  estate,  that  fact  might  be  important  in  determin- 
ing whether  the  intent  of  the  grantor  was  to  convey,  not  merely 
such  present  interest  as  he  may  have  in  the  premises,  but  an  estate 
of  a  particular  description,  which  would,  notwithstanding  the  ab- 
sence of  covenants  for  title,  estop  him  from  claiming  the  after- 
acquired  estate.14  A  deed  with  special  or  limited  covenants  for 
title,  will  be  regarded  in  the  same  light  as  a  quit  claim,  or  deed 
without  covenants,  so  far  as  its  effect,  by  way  of  estoppel,  is  con- 
cerned.16 

the  covenantee.  And  there  is  no  reason  whatever  at  all  sufficient,  why  the 
covenantor  should  not  purchase  the  land  from  the  owner,  and  assert  his  title 
thereto,  or  dispose  of  the  land  as  any  other  person  may  do."  Another  reason 
is  that  a  quit  claim  is  regarded  as  a  mere  release,  and  "  by  a  release  no  right 
passeth  but  the  right  which  the  releasor  hath."  Co.  Litt.  p.  265.  Jackson  v. 
Winslow,  9  Cow.  (N.  Y.)  18. 

"Comstock  v.  Smith,  13  Pick.  (Mass.)  116;  23  Am.  Dec.  670;  Trull  v.  East- 
man, 3  Met.  (Mass.)  121;  37  Am.  Dec.  126.  Loomis  v.  Pingree,  43  Me.  314. 
Bell  v.  Twilight,  6  Fost.  (N.  H.)  401  ;.45  Am.  Dec.  357.  Tillotson  v.  Kennedy, 
5  Ala.  407;  39  Am.  Dec.  330. 

"  So  held  in  Gibbs  v.  Thayer,  6  Cush.  (Mass.)  30,  where  the  grantor  executed 
a  fraudulent  conveyance,  with  special  warranty,  and  afterwards  went  into 
insolvency,  and  purchased  back  his  own  title  at  the  assignee's  sale.  Such  a 
case,  the  court  said,  is  clearly  distinguishable  from  one  in  which  the  grantor 
purchases  in  the  title  of  a  stranger,  as  in  Comstock  v.  Smith,  supra. 

"Doane  v.  Willcutt,  5  Gray  (Mass.),  334;  66  Am.  Dec.  369. 

'»  Western  Min.  &  Mfg.  Co.  v.  Peytona  Coal  Co.,  8  W.  Va.  449. 

14  Post,  this  section. 

M  Harrison  v.  Boring,  44  Tex.  255. 


ESTOPPEL  OF   THE   OKANTOB.  547 

If  the  grantor  covenant  against  certain  designated  claims  only, 
and  afterwards  acquire  the  title  from  a  source  independent  of  those 
having  such  claims,  the  estate  so  acquired  will  not  pass  to  the 
grantee.16 

A  release  or  quit  claim  passes  only  such  interest  as  the  grantor 
then  has,  and  does  not  embrace  a  bare  possibility  of  a  future  inter- 
est.17 If  a  contingent  remainderman  convey  the  estate  by  deed  with 
general  warranty,  the  estate  which  vests  upon  the  happening  of  the 
contingency  will,  of  course,  enure  to  the  benefit  of  the  grantee.18 
But  a  conveyance  of  a  contingent  interest  without  covenants  of 
title  will  not  operate  an  estoppel.19  So,  also,  if  an  heir  convey  his 
estate  in  expectancy  by  quit  claim,  he  will  not,  after  the  death  of 
his  ancestor,  be  estopped  to  hold  the  estate  descended  to  him  as 
against  his  deed.20  If  the  heir  conveys  not  merely  his  interest  in 
expectancy,  but  the  land  itself  with  covenants  of  general  warranty, 
he  will  be  estopped.21 

Even  though  a  deed  contains  general  covenants  for  title,  if  it 
appear  that  the  grantor  does  not  intend  to  convey  an  indefeasible 
estate,  but  merely  such  present  right,  title  or  interest  as  he  may 
have  in  the  premises,  that  is,  no  greater  estate  than  he  was  really 

"Lamb  v.  Wakefield,  1  Sawy.  (U.  S.)  251.  Here  the  covenant  was  against 
all  persons  except  the  government  of  the  United  States  and  those  deriving 
title  from  that  government.  The  covenantor  afterwards  acquired  title  from  a 
donee  of  the  government,  and  it  was  held  that  such  title  did  not  enure  to  the 
eovenantee.  See,  also,  Lamb  v.  Kann,  1  Sawy.  (U.  S.)  338.  Quivey  v.  Baker, 
37  Cal.  471.  Fields  v.  Squires,  Deady  (U.  S.),  380.  Blake  v.  Tucker,  12 
Vt.  44. 

"Varick  v.  Edwards,  1  Hoff.  Ch.   (N.  Y.)   382. 

"4  Kent  Com.  261.  Read  v.  Fogg,  60  Me.  479.  Hayes  v.  Tabor,  41  N.  H. 
521. 

"Jackson  v.  Bradford,  4  Wend.    (N.  Y.)   619. 

*3  Washb.  Real  Prop.  94,  95.  Jackson  v.  Winslow,  9  Cow.  (N.  Y.)  13. 
Hart  v.  Gregg,  32  Ohio  St.  502.  Contra,  Bohon  v.  Bohon,  78  Ky.  408.  In  Mc- 
Clure  v.  Raben,  (Ind.)  25  N.  E.  Rep.  179,  it  was  held  that  a  conveyance  of  an 
expectancy  by  an  heir  apparent  without  warranty,  the  ancestor  being  still 
alive  but  not  informed  of  the  transaction,  would  not  estop  the  heir  from  hold- 
ing the  interest  after  the  death  of  the  ancestor,  though  the  purchase  was  in 
good  faith,  and  full  value  was  paid  for  the  expectant  estate.  But  if  the  deed 
be  with  warranty,  the  heir  will  be  estopped.  Habig  v.  Dodge,  ( Ind. )  25  N.  E. 
Rep.  182.  Johnson  v.  Branch,  9  S.  Dak.  116;  68  N.  W.  Rep.  173. 

"Ackennan  v.  Smiley,  37  Tex.  211. 


548  MABKETABLE   TITLE   TO   REAL   ESTATE. 

possessed  of,  the  after-acquired  title  will  not  pass.22  Of  course,  the 
grantor,  cannot  acquire  by  estoppel  a  greater  estate  than  the  instru- 
ment creating  the  estoppel  purports  to  convey.  A  warranty  cannot 
enlarge  the  estate;  it  attaches  only  to  the  estate  granted  or  pur- 
ported to  be  granted.  If  it  be  a  life  estate  the  covenantor  warrants 
nothing  more.  He  cannot  be  estopped  by  the  deed,  or  the  cove- 
nants contained  in  it,  from  alleging  that  the  fee  did  not  pass,  when, 
the  deed  shows  precisely  what  estate  did  pass,  and  that  it  was  less 
than  the  fee.23 

The  foregoing  rules  show  the  necessity  of  great  care  and  pru- 
dence in  taking  conveyances  of  expectant  or  contingent  interests  in 
real  property.  At  the  first  glance  any  one  who  had  not  given  the 
subject  attention,  would,  very  likely,  conclude  that  a  conveyance  of 
all  the  grantor's  "  right,  title  and  interest,"  with  general  covenants 
for  title,  would  be  an  ample  assurance  of  the  title  to  the  property 
upon  the  happening  of  the  event  vesting  the  title  in  the  grantor. 
Apparently  the  only  safe  course  is  to  take  an  ordinary,  unqualified 
conveyance  of  the  property  in  fee  simple,  with  general  covenants 

"Hannick  v.  Patrick,  119  U.  S.  156;  Brown  v.  Jackson,  3  Wh.  (U.  S.)  452. 
Sanford  v.  Sanford,  135  Mass.  314;  Hoxie  v.  Finney,  16  Gray  (Mass.),  332; 
Sweet  v.  Brown,  12  Met.  (Mass.)  175;  45  Am.  Dec.  243;  Wight  v.  Shaw,  5 
Cush.  (Mass.)  56;  Allen  v.  Holton,  20  Pick.  (Mass.)  458.  Coe  v.  Persona 
Unknown,  43  Me.  436.  Shoemaker  v.  Johnson,  35  Ind.  33 ;  Locke  v.  White,  89 
Ind.  492;  Adams  v.  Ross,  1  Vr.  (N.  J.  L.)  509;  82  Am.  Dec.  237;  White  v. 
Brocaw,  14  Ohio  St.  339.  Wynn  v.  Harman,  5  Grat.  (Va.)  162.  Bell  v. 
Twilight,  6  Fost.  (N.  H.)  411;  45  Am.  Dec.  367.  Gee  v.  Moore,  14  Cal.  474; 
Kimball  v.  Semple,  25  Cal.  441,  452.  Hope  v.  Stone,  10  Minn.  141,  149.  Gibson 
v.  Chonteau,  39  Mo.  536,  567;  100  Am.  Dec.  366;  Valle  v.  Clemens,  18  Mo. 
486;  Bogy  v.  Shoab,  13  Mo.  365.  Holbrook  v.  Debo,  99  111.  372.  The  rule 
stated  in  the  text  has  been  extended  so  far  as  to  defeat  the  passing  of  a  vested 
interest  to  the  covenantee  which,  at  the  time  of  the  conveyance,  was  contingent. 
Thus,  in  Blanchard  v.  Brooks,  12  Pick.  (Mass.)  47,  a  person  being  the  devisee 
of  a  contingent,  and  also  of  a  vested  remainder,  executed  a  deed  with  general 
warranty  purporting  to  convey  all  his  "  undivided  share  or  portion,  right, 
title  and  interest  of,  in  and  to  "  the  lands,  etc.  The  court  said  the  grant  was 
of  all  the  grantor's  "  right,  title  and  interest,"  and  not  of  the  land  itself,  or 
of  any  particular  estate  in  the  land.  "  The  grant  in  legal  effect  operated  only 
to  pass  the  vested  interest,  and  not  the  contingent  interest,  and  the  warranty 
being  co-extensive  with  the  grant,  did  not  extend  to  the  contingent  interest, 
and  of  course,  did  not  operate  upon  it  by  way  of  estoppel."  A  lik«  decision 
upon  a  similar  state  of  facts  was  made  in  Hall  v.  Chaffee,  14  N.  H.  215,  225. 

23  2  Co.  Litt.  385,  b.     Adams  v.  Ross,  1  Vr.  (N.  J.)   505;  82  Am.  Dec.  237. 


ESTOPPEL   OF   THE   GRANTOR.  549 

for  title,  or  to  require  the  vendor  conveying,  without  covenants,  to 
insert  recitals  showing  that  he  intends  to  part  with  all  prospective 
as  well  as  present  interests  in  the  estate. 

But  while  a  mere  quit  claim  of  the  grantor's  present  interest  will 
not  estop  him  from  claiming  the  after-acquired  interest,  it  does  not 
follow  that  there  will  be  no  estoppel  wherever  there  are  no  cove- 
nants for  title.  If  the  deed  bears  on  its  face  evidence  that  the 
grantor  intended  to  convey,  and  the  grantee  expected  to  acquire,  an 
estate  of  a  particular  description  or  quality,  as  distinguished  from  a 
quit  claim  or  release,  the  after-acquired  title  will  pass  to  the 
grantee,  though  the  deed  contains  no  formal  covenants  for  title.24 

24 Ante,  §  217.  Bigelow  Estoppel  (3d  ed.),  333;  Rawle  Cojvt.  (5th  ed.) 
§  247.  Van  Rensselaer  v.  Kearney,  11  How.  (U.  S.)  298;  French  v.  Spencer, 
21  How.  (U.  S.)  228,  240.  Clark  v.  Baker,  14  Cal.  612,  629.  Taggart  v. 
Risley,  4  Oreg.  235.  Habig  v.  Dodge,  (Ind.)  25  N.  E.  Rep.  182.  Hagensick 
v.  Castor,  53  Neb.  495 ;  73  N.  W.  Rep.  932.  Lindsey  v.  Freeman,  83  Tex.  259 ; 
18  S.  W.  Rep.  727;  Scates  v.  Fohn,  (Tex.  Civ.  App.)  59  S.  W.  Rep.  837; 
Garrett  v.  McLain,  18  Tex.  Civ.  App.  245;  44  S.  W.  Rep.  47.  Van  Rensselaer 
v.  Kearney,  supra,  is  a  leading  case  upon  this  point.  It  distinguishes  between 
a  quite  claim  or  release,  and  a  deed  without  covenants  for  title,  yet  which 
shows  on  its  face  that  the  grantor  intended  to  convey  an  estate  of  a  particular 
description  or  quality  and  not  merely  whatever  interest  or  estate  the  grantor 
might  happen  to  have.  The  court,  by  NELSON,  J.,  after  discussing  certain 
analogous  authorities,  continued :  "  The  principle  deducible  from  these  au- 
thorities seems  to  be  that  whatever  may  be  the  form  or  nature  of  the  convey- 
ance used  to  pass  real  property,  if  the  grantor  sets  forth  on  the  face  of  the 
instrument,  by  way  of  recital  or  averment,  that  he  is  seized  or  possessed  of  a 
particular  estate  in  the  premises  and  which  estate  the  deed  purports  to  con- 
vey; or,  what  is  the  same  thing,  if  the  seizure  or  possession  of  a  particular 
estate  is  affirmed  in  the  deed,  either  in  express  terms  or  by  necessary  implica- 
tion, the  grantor,  and  all  persons  in  privity  with  him,  shall  be  estopped  from 
ever  afterwards  denying  that  he  was  so  seized  and  possessed  at  the  time  he 
made  the  conveyance.  The  estoppel  works  upon  the  estate  and  binds  an 
after-acquired  title  as  between  parties  and  privies.  The  reason  is,  that  the 
estate  thus  affirmed  to  be  in  the  party  at  the  time  of  the  conveyance  must 
necessarily  have  influenced  the  grantee  in  making  the  purchase,  and  hence 
the  grantor  and  those  in  privity  with  him,  in  good  faith  and  fair  dealing, 
should  be  forever  thereafter  precluded  from  gainsaying  it.  The  doctrine  is 
founded,  when  properly  applied,  upon  the  highest  principles  of  morality  and 
recommends  itself  to  the  common  sense  and  justice  of  every  one.  And  al- 
though it  debars  the  truth  in  the  particular  case,  and,  therefore,  is  not 
unfrequently  characterized  as  odious  and  not  to  be  favored,  still  it  should  be 
remembered  that  it  debars  it  only  in  the  case  where  its  utterance  would  con- 
vict the  party  of  a  previous  falsehood ;  would  be  the  denial  of  a  previous  affir- 
mation, upon  the  faith  of  which  persons  had  dealt  and  pledged  their  credit  or 


550  MARKETABLE   TITLE    TO    REAL   ESTATE. 

rlt  has  been  held  that  the  fact  that  an  instrument  is  a  quit-claim 
deed  in  form  will  not  preclude  the  grantee  from  showing  that 
something  more  than  the  grantor's  interest,  such  as  it  might  be,  was 
intended  to  be  conveyed.25 

The  principle  involved  in  these  cases  is,  that  the  grantor  having 
by  his  conveyance  represented  himself  to  be  the  true  owner  of  the 
particular  estate  therein  described,  should  be  estopped  to  allege  the 
contrary,  if  he  should  afterwards  acquire  title  to  the  estate,  upon 
the  same  ground  that  a  party  to  an  instrument  is  estopped  by  the 
recitals  which  it  contains.  If  the  grantor  in  the  quit  claim  allege 
himself  to  be  the  owner  of  the  premises,  both  he  and  those  claiming 
under  him  will  be  estopped  to  deny  that  fact  and  to  hold  the  after- 
acquired  title.26  In  Maine  it  has  been  held  that  the  covenant  of 
"  non-claim  "  will  not  operate  an  estoppel,  for  the  reason  that  such 
a  covenant  amounts  to  no  more  than  a  mere  quit  claim.27  A  con- 
trary view  has  been  taken  in  Massachusetts.28 

expended  their  money."  In  Nixon  v.  Carco,  28  Miss.  414,  426,  the  following 
instrument  was  held  sufficient  to  estop  the  heirs  of  the  grantor  from  setting 
up  the  after-acquired  title: 

"PASS  CHRISTIAN,  October  7,  1815. 

"  I,  the  undersigned,  declare  that  I,  John  Baptiste  Carco,  have  sold  to 
Messrs.  Francis  Bouquie  and  Anthony  Martin  my  plantation  and  two  cabina 
situate  thereon,  together  with  the  enclosure  and  all  the  rails.  (Here  follows 
a  description  of  the  property  and  recital  of  the  consideration.) 

"  (Signed.)  JEROME  BAPTISTE  CARCO." 

In  Thomas  v.  Stickle,  32  Iowa,  72,  it  was  held  that  a  quit  claim  of  all  the 
grantor's  interest  would  include  a  tax  certificate  held  by  the  grantor  at  the 
time  of  the  conveyance,  but  not  disclosed  by  him,  by  means  of  which  he  after- 
wards obtains  a  tax  deed  of  the  land;  and  that  the  title  so  acquired  enured 
to  the  benefit  of  the  grantee. 

*  Harrison  v.  Boring,  44  Tex.  255.  If  the  consideration  of  the  quit  claim  did 
not  appear  upon  its  face,  parol  evidence  would  seem  admissible  to  show  that 
the  grantor  received  the  full  value  of  the  estate,  and  that,  therefore,  an  estate 
of  a  particular  description  was  intended  to  be  conveyed ;  this  upon  the  ground 
that  parol  evidence  is,  as  a  general  rule,  admissible  to  show  the  consideration 
of  an  instrument  as  between  the  parties. 

"Jackson  v.  Waldron,  13  Wend.  (N.  Y.)  178. 

"Pike  v.  Galvin,  29  Me.  183,  overruling  Fairbanks  v.  Williamson,  7  Gr. 
(Me.)  97;  Ham  v.  Ham,  14  Me.  355;  Partridge  v.  Patten,  33  Me.  483;  54  Am. 
Dec.  633;  Loomis  v.  Pingree,  43  Me.  314;  Harriman  v.  Gray,  49  Me.  538; 
Read  v.  Fogg,  60  Me.  479. 

"Trull  v.  Eastman,  3  Met.  (Mass.)  121;  37  Am.  Dec.  126,  distinguishing 
between  a  quit  claim  and  a  covenant  of  non-claim  on  the  ground  that  a  quit 
claim,  being  a  mere  conveyance  of  such  right  as  the  grantor  then  has,  does  not 


ESTOPPEL  OF  THE   GRANTOR.  551 

An  exception  to  the  rule  that  a  quit-claim  deed  will  not  pass  an 
after-acquired  title  has  been  held  to  exist  where  one  who,  after  pur- 
chasing lands  from  the  State  and  paying  for  them,  quit  claimed  his 
interest  to  a  third  person  before  a  patent  issued.  In  such  a  case  the 
title  when  perfected  by  the  patent  passes  to  the  grantee,  on  the 
ground  that  the  inception  of  the  title  by  the  purchase  and  its  con- 
summation by  patent  are  parts  of  the  same  title,  the  patent  relating 
back  to  the  inception ;  and  upon  the  further  ground  that  the  grantor 
intended  to  convey  and  the  grantee  expected  to  receive,  not  merely 
such  inchoate  title  as  the  grantor  then  had,  but  the  perfected  title 
accruing  upon  compliance  with  all  the  requirements  of  the  laws 
regulating  public  grants.29  Upon  the  same  principle  it  would  seem 
that  a  quit  claim  executed  by  one  who  had  paid  the  purchase  money 
in  full  for  the  premises,  but  had  not  received  a  conveyance,  would 
operate  to  pass  the  legal  title  to  his  grantee  when  afterwards  con- 
summated by  a  conveyance  from  the  original  grantor.  Another 
exception  to  the  rule  that  a  quit  claim  does  not  create  an  estoppel, 
exists  in  those  cases  in  which  the  quit  claim  expressly  provides 
that  neither  the  grantor,  nor  his  assigns,  will  hereafter  claim  any 
right,  title  or  interest  in  the  premises  conveyed.  In  such  cases 
the  grantor  and  his  assigns  are  estopped  to  assert  an  after-acquired 
title  to  the  estate.30 

It  seems  that  covenants  for  title  executed  by  a  fiduciary  will  not 
estop  the  beneficiary  from  claiming  an  after-acquired  estate.  Thus, 
if  a  ward  acquires  title  after  a  sale  and  conveyance  by  his  guardian, 
it  has  been  held  that  such  title  will  not  enure  to  the  benefit  of  the 
purchaser.31  Nor  will  a  title  acquired  by  an  execution  debtor  after 
sale  by  the  plaintiff  enure  to  the  benefit  of  the  purchaser  at  such 
sale.32 

include  future  interests,  while  a  covenant  of  non-claim,  i.  e.,  that  neither  the 
grantor  nor  his  heirs  will  thereafter  claim  the  premises,  expressly  contem- 
plates the  after-acquired  estate.  Miller  v.  Ewing,  6  Cush.  (Mass.)  34. 

58  Welsh  v.  Button,  79  111.  465.     Irvine  v.  Irvine,  9  Wall.    (U.  S.)   618. 

»  Garlick  v.  Railway  Co.,  67  Ohio  St.  223 ;  65  N.  E.  Rep.  896. 

"Young  v.  Lorain,  11  111.  624;   52  Am.  Dec.  463. 

"Henderson  v.  Overton,  9.  Yerg.  (Tenn.)  393;  24  Am.  Dec.  492.  McArthur 
v.  Oliver,  60  Mich.  605.  Gentry  v.  Callahan,  98  N.  C.  448.  Westheimer  v. 
Reed,  15  Neb.  662. 


552  MARKETABLE   TITLE   TO   REAL,   ESTATE. 

§  219.  ESTOPPEL  OF  GBAJTTZE.  By  the  common  law  of  Eng- 
land a  grantee  who  had  accepted  and  taken  possession  of  an  estate 
was  estopped  to  deny  the  title  of  his  grantor  or  of  any  one  claiming 
under  him.33  Thus,  if  a  widow  brought  an  action  to  recover  dower 
against  the  grantee  of  her  husband,  the  defendant  was  estopped  to 
show  that  the  husband  had  had  no  title  to  the  land.  This  rule  was 
followed  in  New  York  by  several  early  decisions,34  but  they  were 
afterwards  overruled,35  and  it  is  settled  now  in  that  State,  as  well  as 
in  other  States,  that  the  grantee  is  not  estopped  to  deny  the  title  of 
his  grantor,  or  of  any  one  claiming  under  him.36  If,  however,  the 
real  title  be  already  in  the  grantee,  he  will  be  estopped  from  suing 
on  the  covenants  of  his  grantor  by  his  acceptance  of  the  grant37 
But  while  the  grantee  is  not  estopped  to  deny  the  title  of  the 
grantor  by  way  of  defense  to  an  action  for  the  purchase  money,  he 
is  estopped  in  another  sense,  namely,  that  he  cannot  acquire  the 
adverse  title  and  set  it  up  adversely  to  the  grantor,  so  as  to  prevent 
the  latter  from  recovering  the  balance  of  the  purchase  money  over 
and  above  that  paid  by  the  grantee  to  get  in  the  title.38  The  rule 
that  the  purchaser  is  estoppped  to  deny  his  vendor's  title  has  been 
held  not  to  apply  where  the  vendor  undertook  to  sell  a  part  of  the 
public  domain  to  which  he  had  no  title.  In  such  a  case  the  pur- 
chaser, on  ascertaining  4he  vendor's  want  of  title,  may  himself 
preempt  the  land  and  claim  adversely  thereunder  to  his  vendor.39 
Neither  does  the  rule  apply  where  the  vendee  was  induced  to  pur- 

"  Co.  Litt.  352,  a. 

••Bowne  v.  Potter,  17  Wend.  (N.  Y.)  164;  Sherwood  v.  Vendenburgh,  2 
Hill  (N.  Y.),  307;  Osterhout  v.  Shoemaker,  3  Hill  (N.  Y.),  518. 

*Averill  v.  Wilson,  4  Barb.  (N.  Y.)  180;  Sparrow  v.  Kingman,  12  Barb. 
(N.  Y.)  208;  1  Const.  (N.  Y.)  245;  Finn  v.  Sleight,  8  Barb.  (N.  Y.)  406. 

"Gaunt  T.  Wainman,  3  Bing.  N.  Cas.  69.  Small  v.  Proctor,  15  Mass.  495; 
Porter  v.  Sullivan,  7  Gray  (Mass.),  441;  Craig  v.  Lewis,  110  Mass.  377. 
Fox  v.  Widgery,  4  Gr.  (Me.)  218;  Foster  v.  Dwinel,  49  Me.  44;  McLeery  T. 
McLeery,  65"  Me.  173.  Cutter  v.  Waddingham,  33  Mo.  282.  Patterson  T. 
Dwinel,  113  HI.  570.  Clee  v.  Seaman,  21  Mich.  287. 

w  Fitch  v.  Baldwin,  17  Johns.  (N.  Y.)  166.  Beebe  v.  Swartwout,  3  Gil. 
(HL)  179. 

"Ante,  f  168.  Ellis  v.  Crossley,  119  Fed.  779.  As  to  estoppel  of  the  pur- 
chaser where  the  contract  is  still  executory,  see  ante,  §  202,  and  post,  f  279. 

••  Spier  v.  Laman,  27  Tex.  205 ;  Wheeler  v.  Styles,  28  Tex.  240.  For  quali- 
fications of  this  doctrine  see  ante,  |§  168,  202. 


ESTOPPEL  OF   THE  OBANTOE.  553 

chase  by  reason  of  the  fraudulent  representation  of  the  vendor.40 
Nor  where  the  purchaser  has  been  actually  or  constructively 
evicted.41  The  spirit  and  intent  of  the  rule  is  that  the  purchaser 
shall  not  repudiate  the  contract  while  he  remains  in  possession 
and  retains  its  benefits.  And  if  the  purchaser  rejects  title  and  pos- 
session from  the  vendor,  and  takes  possession  under  what  he  sup- 
poses is  the  better  title,  he  may  set  up  such  title  in  defense  of  an 
action  of  ejectment  by  the  vendor.42 

§  220.  RESUME  OF  PBINCIPLES.  Mr.  Rawle,  in  summing  up 
the  results  of  the  American  decisions  as  to  the  transfer  of  the  after- 
acquired  estate,  observes  that  the  doctrine  rests  upon  a  principle 
which  is  or  at  times  may  be  salutary,  being  intended  to  carry  out 
the  real  intention  of  the  parties  that  a  certain  particular  estate 
was  to  be  conveyed  and  received,  and  where  that  intention  appears 
the  law  will  not  suffer  the  grantor  to  defeat  it.  Such  an  intention 
may  be  deduced  either  from  averments,  recitals,  or  the  like,  or  from 
the  presence  of  covenants  for  title;  and  it  is  immaterial  what 
particular  covenants  there  may  be,  so  that  they  show  the  intention. 
But  the  intention  is  not  necessarily  deduced  from  the  covenants, 
and  may  appear  by  other  parts  of  the  deed.  In  many  cases,  to 
prevent  circuity  of  action,  it  may  be  held  that  the  estate  actually 
passes ;  but  this  should  not  be  suffered  to  work  injustice  by  depriv- 
ing the  first  grantee  of  his  legal  right  of  action,  i.  e.,  his  option 
to  sue  for  breach  of  covenant.  And  the  doctrine  may  often  apply 
when  there  is  no  right  of  action,  but  should  never  be  applied 
against  a  purchaser  without  notice.43  These  conclusions  appear  to 
be  sound  in  principle  and  to  be  warranted  by  the  decisions,  except 
in  so  far  as  they  would  permit  the  covenantee,  upon  a  breach  of 
the  covenant  of  seisin  unaccompanied  by  disturbance  of  the  pos- 
session, to  practically  rescind  the  executed  contract  and  recover 

44  Patterson  v.  Fisher,  8  Blackf.    (Ind.)   237. 

"Thus,  in  Beall  v.  Davenport,  48  Ga.  165;  15  Am.  Rep.  656,  it  was  held 
f  that  the  purchaser,  in  ejectment  by  the  vendor,  might  show  that  the  land 
had  been  sold  to  a  third  person  under  execution  against  the  vendor,  and  that 
he  (the  purchaser)  had  attorned  to  such  third  person  as  tenant.  This,  it  is 
apprehended,  would  amount  to  a  constructive  eviction.  Strong  v.  Waddell, 
56  Ala.  471.  •  Bigelow  Estoppel  (5th  ed.),  p.  545. 

"Nerhooth  v.  Althouse,  8  Watts  (Pa.),  427;  34  Am.  Dec.  480. 

41  Covenants  for  Title   (5th  ed.),  §  2(54. 


554 


MARKETABLE    TITLE    TO    REAL   ESTATE. 


the  purchase  money  as  damages,  though  he  had  not  suffered  and 
could  never,  by  reason  of  the  after-acquired  title,  suffer  actual 
damage  from  the  breach  of  the  covenant.  In  such  a  case  an  at- 
tempt has  been  made  to  show  that  upon  reason  and  authority  the 
covenantee  must  take  the  after-acquired  title,  not  in  lieu  of  dam- 
ages, for  there  can  be  no  substantial  damages  when  the  covenantee 
has  suffered  no  actual  injury,  but  in  satisfaction  of  the  grantor's 
covenant,  and  as  denial  of  the  demand  for  rescission  when  the 
grantee  is  in  the  enjoyment  and  possession  of  everything  that  the 
covenant  was  intended  to  secure  to  him.44 

"  Ante,  §  215. 


CHAPTER  XXII. 

REFORMATION  OF  THE  CONVEYANCE. 

WHEN  GRANTED  AND  WHEN  DENIED. 

General  principles.     §  221. 

Mistake  of  fact.     §  222. 

Mistake  of  law.     §  223. 

Mutuality  of  mistake.     Fraud.     §   224. 

Mistakes  resulting  from  negligence.     §  225. 

Nature  and  degree  of  evidence  required.     §  226. 

Laches  in  application  for  relief.     §  227. 

Defective  execution  of  statutory  power.     §  228. 
IN  FAVOR  OF  AND  AGAINST  WHOM  RELIEF  MAY  BE  HAD. 

In  general.     §  229. 

In  favor  of  grantor.     §  230. 
.  Purchasers  and  creditors.     §  231. 

Volunteers.     §  232. 

Married  women.     §  233. 

§  221.  WHEN  GRANTED  AND  WHEN  DENIED.  General  prin- 
ciples. The  reformation  or  correction  of  written  contracts  or  con- 
veyances which,  for  some  reason,  fail  to  express  the  true  intention 
of  the  parties,  is  one  of  the  most  familiar  grounds  of  equitable 
jurisdiction.1  We  shall  see,  hereafter,  that  in  certain  cases  of 
mistake  when  the  contract  has  been  executed  by  the  delivery  and 
acceptance  of  a  conveyance,  the  grantee  is  entitled  to  a  rescission 
or  abrogation  of  the  contract,  and  to  have  back  from  the  grantor 
whatever  may  have  been  paid  or  delivered  to  him  in  furtherance 
of  the  agreement.2  But  in  such  cases  the  remedy  of  the  grantee  in 
equity  is  not  limited  to  a  rescission  of  the  contract.  As  a  general 
rule  he  may  elect  to  affirm  the  contract,  and  insist  that  a  new  con- 
veyance shall  be  executed,  either  by  the  defendant,  or  by  an  officer 
of  the  court  acting  on  behalf  of  the  defendant  by  decree  of  the 
court,  which  shall  operate  as  a  reformation  or  correction  of  the 

*1  Story  Eq.  Jur.  p.  108,  et  seq.;  2  Pomeroy's  Eq.  Jur.  §  845;  2  Beach 
Mod.  Eq.  Jur.  p.  609.  An  instructive  summary  of  the  conditions  under 
which  equity  will  reform  a  written  contract,  will  be  found  in  Humphreys  v. 
Hurtt,  20  Hun  (N.  Y.),  398. 

'Post,  ch.  35,  Fraud  and  Mistake. 


556  MARKETABLE    TITLE    TO    REAL   ESTATE. 

original  deed,  and  effectuate  the  true  intent  of  the  original  parties.3 
This,  after  all,  is  no  more  than  specific  performance  of  the  con- 
tract; the  court  goes  back  of  the  conveyance  and  ascertaining  the 
real  terms  and  subject-matter  of  the  executory  agreement  between 
the  vendor  and  the  vendee,  directs  that  a  new  deed  be  executed  in 
conformity  therewith.4  The  reformation  is  not  to  make  a  new 
agreement  between  the  parties,  but  to  establish  and  perpetuate 
the  old  one.5 

The  deed  may,  of  course,  be  reformed  by  the  original  parties 
thereto  or  by  their  privies  if  sui  juris  and  in  no  way  incompetent 
to  execute  a  new  conveyance.6  And  it  has  been  laid  down  as  a  gen- 
eral rule  that  a  bill  will  not  lie  to  reform  a  deed  unless  a  new  deed, 
correcting  the  error  or  mistake  complained  of,  has  been  prepared 
and  tendered  by  the  grantee  to  the  grantor  or  other  person  who 
should  execute  the  same  and  execution  thereof  has  been  refused, 
and  that  the  bill  should  aver  such  tender  and  refusal.7  But  these 
cases  have  been  disapproved  and  the  better  rule  declared  to  be  that 
the  court  shall  retain  the  bill  until  the  correction  is  made,  taxing 
the  costs  against  the  complainant,  if  the  bill  was  filed  unnecessarily 
and  without  previous  request  in  pais  to  correct  the  error.8  No 
tender  of  an  amended  or  corrected  deed  is  necessary  where  the 
party  from  whom  reformation  is  sought  has  refused  to  execute  a 
new  deed  or  denies  the  plaintiff's  equity,  or  is  incompetent  to  exe- 
cute the  deed,  nor,  generally,  wherever  a  tender  of  a  corrected  deed 
would  be  vain  and  useless.9  Neither  does  the  rule  apply  in  a  suit 
to  foreclose  a  mortgage  in  which  the  reformation  of  the  mortgage 
was  merely  incidental  to  the  main  object  of  the  suit,  that  is,  to 
compel  the  payment  of  the  purchase  money  by  foreclosure.10  If, 
upon  request,  a  party  or  privy  to  the  deed  refuses  to  correct  a  mis- 

'  See,  generally,    the  cases   and  authorities  cited  throughout  this   chapter. 

'Dickinson  v.  Glenneg,  27  Conn.  104.  Adams  v.  Reed,  (Utah)  40  Pac.  Rep. 
720,  diet.  Hoffman  v.  Kirby,  136  Cal.  26;  68  Pac.  Rep.  321. 

•Welshbillig  v.  Drenhart,  65  Ind.  94. 
•    « Lavender  v.  Lee,  14  Ala.  688. 

7  Long  v.  Brown,  4  Ala.  622;  Beck  v.  Simmons,  7  Ala.  71;  Lamkin  v.  Reese, 
7  Ala.  170;  Black  v.  Stone,  33  Ala.  327.  Heck  v.  Remka,  47  Md.  68.  Jen- 
nings v.  Brizendine,  44  Mo.  332. 

1  Robbins  v.  Battle  House  Co.,  74  Ala.  499. 

•Robbins  v.  Battle  House  Co.,  74  Ala.  499. 

10  Axtel  v.  Chase,  83  Ind.  546. 


REFOBMATION    OF    THE    CONVEYANCE.  557 

take  therein  by  the  execution  of  a  new  deed  or  release  or  quit 
claim,  costs  should  be  awarded  against  him.11  So,  also,  if  he  per- 
tinaciously and  contrary  to  good  faith  resists  an  application  to 
equity  for  reformation  of  the  deed.12 

The  court,  it  seems,  will  not  reform  a  deed  unless  the  pleadings 
contain  a  prayer  for  such  relief.13  It  has  been  held,  however,  that 
the  general  prayer  for  "  other  and  further  relief  "  is  sufficient  for 
this  purpose.14 

The  reformation  of  a  conveyance,  so  as  to  conform  to  the  terms 
of  a  parol  agreement  for  the  sale  of  the  premises  conveyed,  is  not 
within  the  Statute  of  Frauds,  and  the  reason  is  that  a  contrary 
rule  would,  in  such  a  case,  prevent  any  relief  whatever,15  Nor  is 
it  necessary  to  show  such  part  performance  of  the  parol  contract 
as  would  take  the  case  out  of  the  Statute  of  Frauds.16 

The  court  will  not  reform  a  deed  in  favor  of  one  party,  without 
enforcing  equities  arising  out  of  the  transaction  in  favor  of  the 
other  party.  Therefore,  where  the  grantee  sought  to  reform  a 
deed,  for  error  in  the  description  of  the  premises,  and  it  appeared 
that  the  grantor  had  verbally  reserved  the  right  to  occupy  the 

11  Hutson  v.  Furnas,  31  Iowa,  154. 

u  Dod  v.  Paul,  43  N.  J.  Eq.  302. 

"Gamble  v.  Daugherty,  71  Mo.  599. 

uCoe  v.  N.  J.  Mid.  R.  Co.,  31  N.  J.  Eq.  105. 

"Adams  Eq.  (5th  Am.  ed.)  345  (171);  Pom.  Eq.  Jur.  {  867.  Noell  v. 
Gill,  84  Ky.  241;  1  S.  W.  Rep.  428.  Conaway  v.  Gore,  24  Kans.  389,  the 
court,  by  BBEWEB,  J.,  saying:  "The  argument  is  that  the  contract  for  the 
sale  of  the  land  was  in  parol;  that  there  is  no  allegation  or  proof  of  the  de- 
livery of  possession,  the  making  of  improvements,  or  any  other  matters 
which  take  a  parol  contract  out  of  the  Statute  of  Frauds;  that  the  deed 
which  was  executed  was  a  conveyance  of  other  land,  and,  therefore,  neither 
a  conveyance  nor  a  contract  for  the  land  in  question.  The  argument  is 
elaborated  by  counsel,  and  many  authorities  are  cited.  But  these  authori- 
ties run  along  the  line  of  the  doctrine  of  specific  performance,  while  the  case 
at  bar  comes  under  the  head  of  reformation  of  contracts.  The  difference  be- 
tween the  two  is  marked  and  substantial.  One  aims  to  enforce  a  parol  con- 
tract as  though  it  were  in  writing,  the  other  seeks  simply  to  conform  the 
written  to  the  real  contract.  One  would  avoid  the  necessity  of  any  writing, 
the  other  would  simply  correct  the  writing.  The  principles  which  control  the 
one  are  essentially  different  from  those  which  control  the  other.  *  *  *  It 
(reformation)  is  not  the  substitution  of  acts  in  pais  for  the  written  contract, 
but  it  is  the  making  of  the  writing  the  expression  of  the  real  contract." 

"Morrison  v.  Collier,  79  Ind.  417. 


558  MARKETABLE   TITLE    TO    REAL   ESTATE. 

premises,  and  to  be  supported  from  the  rents  and  profits  thereof 
during  the  remainder  of  his  life,  the  court,  as  a  condition  upon 
which  the  deed  should  be  reformed,  required  the  grantee  to  convey 
the  premises  to  a  trustee  for  the  use  and  benefit  of  the  grantor  for 
life.17  The  fact  that  the  premises  were,  at  the  time  of  the  execu- 
tion of  the  deed,  in  the  adverse  possession  of  a  stranger,  does  not 
affect  the  grantee's  right  to  reformation.18  If,  by  mistake,  a  deed 
do  not  convey  the  whole  of  the  premises  purchased,  the  remedy 
of  the  purchaser  is  by  suit  for  reformation  of  the  deed,  and  not 
an  action  on  the  grantor's  covenant  of  warranty.19  In  Indiana 
it  has  been  held  that  where,  by  reason  of  a  misdescription  of  lands 
in  a  deed,  a  grantee  does  not  obtain  the  legal  title,  and  before  dis- 
covery of  the  mistake,  the  lands  are  sold  under  execution  against 
the  grantee,  the  purchaser  in  possession  acquires  no  title,  either  at 
law  or  in  equity,  and  cannot  maintain  a  suit  to  reform  the  deed. 
The  reason  given  for  this  decision  was  that  the  grantee  under 
the  defective  deed  had  only  an  equitable  title  or  interest,  and  that 
such  an  interest  being  incapable  of  sale  under  execution,  the  pur- 
chaser acquired  no  title  of  any  kind.20 

Mistakes  which  occur  in  the  registration  of  deeds  are  to  be  cor- 
rected, not  by  changing  the  record,  but  by  compelling  the  execution 
of  a  quit  claim  or  release  on  the  part  of  him  who  might  take 
advantage  of  the  mistake.21 

§  222.  Mistakes  of  fact.  The  greater  number  of  suits  for  the 
reformation  of  deeds  are  founded  upon  some  mistake  of  fact, 
either  in  respect  to  the  contents  or  to  the  consideration  of  the 
instrument  to  be  reformed.  A  mistake  of  fact  in  an  executed  con- 
tract occurs:  (1)  Where  the  conveyance  contains  or  omits  some 
matter  or  thing  which  it  was  intended  by  the  parties  should  not 
be  so  contained  therein  or  omitted  therefrom;22  as  where  the 

"Coleman  v.  Coleman,  Phil.  Eq.   (N.  C.)   43. 

"Thompson  v.  Marshall,  36  Ala.  504;   76  Am.  Dec.  328. 

"Broadway  v.  Buxton,  43  Conn.  282. 

*•  Connor  v.  Wells,  91  Ind.  197. 

"Hiatt  v.  Callaway,  7  B.  Mon.   (Ky.)    178. 

"Parham  v.  Parham,  6  Humph.  (Tenn.)  287.  Perkins  v.  Dickinson,  3 
Grat.  (Va.)  335.  In  Kirk  v.  Zell,  1  McArth.  (D.  C.)  116,  a  mistake  of  the 
draftsman  in  conveying  the  whole  estate  to  the  grantee  instead  of  one  moiety, 
and  the  other  moiety  to  another,  was  corrected.  I  So,  where  the  draftsman 

"v 


REFORMATION    OF    THE    CONVEYANCE.  559 

scrivener  omits  from  the  deed  some  provision  upon  which  the 
parties  have  agreed,23  or  employs  language  insufficient  to  effectu- 
ate the  intent  of  the  parties,24  and  they  have  executed  the  deed 
in  ignorance  of  the  omission.  (2)  Where  the  contents  of  the  deed 
are  as  they  were  intended  by  the  parties,  but  those  contents  them- 
selves are  founded  in  ignorance  and  mistake  of  fact ;  as  where  the 
parties,  upon  misinformation,  insert  a  wrong  description  of  the 
premises  to  be  conveyed;  or  where  a  part  of  the  premises  was 
already  the  property  of  the  grantee,  both  parties  being  ignorant 
of  his  title  thereto.  In  all  such  cases  the  equity  of  the  grantee  to 
have  the  deed  reformed  so  that  it  may  speak  the  true  intention 
of  the  parties  is  clear  and  undeniable.26  In  this  respect  convey- 

inserted  the  name  of  the  wrong  person  as  grantee.  Bohanan  v.  Bohanan,  3 
111.  App.  502.  This  class  of  cases  will  include  those  in  which  there  are  mere 
clerical  errors  in  the  description  of  the  premises,  such  as  the  insertion  of  one 
number  instead  of  another,  as  where  a  deed  read  "  seven  degrees  and  thirty- 
nine  minutes  "  instead  of  "  seventy  degrees  and  thirty-nine  minutes."  Clay- 
poole  v.  Houston,  12  Kans.  324. 

MAthey  v.  McHenry,  6  B.  Mon.  (Ky.)  50.  Bouldin  v.  Wood,  96  Md.  332; 
63  Atl.  Rep.  911;  Hebler  v.  Brown,  41  N.  Y.  Supp.  441. 

"Adams  Eq.   (5th  Am.  ed.)  343  (169). 

"Adams  Eq.  (5th  Am.  ed.)  339  (168).  Moore  v.  Munn,  69  111.  591; 
Briegel  v.  Muller,  82  111.  257.  Fullen  v.  Savings  Bank,  14  R.  I.  363.  Fields 
v.  Clayton,  117  Ala.  538;  23  So,  Rep.  530.  Winnipisseogee  Lake  Cotton  Mfg. 
Co.  v.  Perley,  46  N.  H.  83.  Here  a  deed  founded  upon  the  erroneous  com- 
putations of  a  surveyor  was  reformed.  In  First  Nat.  Bank  v.  Gough,  61 
Ind.  147,  it  was  said  that  the  neglect  of  the  parties  to  insert  a  proper  de- 
scription of  the  premises  in  a  mortgage  was  a  mistake  of  law  —  a  statement 
deserving  much  consideration.  Whether  the  want  of  a  sufficient  description 
is  a  mistake  of  law  or  a  mistake  of  fact  can  be  determined  only,  it  would 
seem,  by  the  circumstances  of  each  case  and  the  nature  of  the  mistake.  If 
they  are  mutually  mistaken  in  inserting  wrong  boundaries,  that  is  clearly  a 
mistake  of  fact.  Tooley  v.  Chase,  (Oreg.)  37  Pac.  Rep.  908.  If  they  ad- 
visedly insert  an  insufficient  description  believing  it  to  be  sufficient,  that 
would  be  a  mistake  of  fact.  And  it  is  apprehended  that  if  the  deed  were 
prepared  by  a  third  person  and  the  parties  executed  it  without  adverting  to 
the  erroneous  or  insufficient  description,  so  that  the  deed  does  not  effectuate 
their  purposes,  that  would  be  a  mistake  of  fact,  and  equity  would  reform  the 
instrument.  Instances  in  which  equity  has  reformed  a  deed  containing  an 
erroneous  description  of  the  premises  will  be  found  in  Dane  v.  Derber,  38 
Wis.  216.  Berry  v.  Webb,  77  Ala.  507.  Bush  v.  Bush,  33  Kans.  556;  6  Pac. 
Rep.  794;  Critchfield  v.  Kline,  39  Kans.  721;  18  Pac.  Rep.  898.  Skerrett  v. 
Presbyterian  Society,  41  Ohio  St.  606.  Christman  v.  Colbert,  33  Minn.  500; 
24  N.  W.  Rep.  301.  Kellogg  v.  Chapman,  30  Fed.  Rep.  882.  Sowler  v.  Day, 
58  Iowa,  252;  12  N.  W.  Rep.  297;  Roberts  v.  Taliaferro,  7  Iowa,  110.  Hile- 
man  v.  Wright,  9  Ind.  126. 


560 


MARKETABLE    TITLE    TO    BEAL    ESTATE. 


ances  stand  upon  different  grounds  from  wills,  for  while  a  latent 
ambiguity  in  a  will  is  open  to  explanation  by  parol  proof,  nothing 
can  be  supplied  to  a  will  or  expunged  therefrom  on  the  ground 
of  mistake ;  for,  as  has  been  said,  there  can  be  no  will  without  the 
statutory  forms,  and  the  disappointed  intention  of  the  testator  has 
not  these  forms.26  But  a  patent  ambiguity  in  a  deed  may  be  cor- 
rected or  removed  by  a  suit  to  reform  the  deed  ;27  and  the  author- 
ities to  the  effect  that  mistakes  or  ambiguities  in  a  will  cannot 
be  corrected  or  explained,  have  no  application  whatever  to  the 
reformation  of  deeds.28 

The  grantor  cannot  maintain  a  bill  to  reform  his  deed  by  insert- 
ing a  reservation  of  certain  rights  in  the  premises,  if  it  appears 
that  such  reservation  was  not  omitted  from  the  deed  through  fraud, 
accident  or  mistake,  but  merely  in  consequence  of  his  reliance 
upon  the  agreement  of  the  purchaser  to  carry  out  the  original 
contract.29  If  by  mistake  covenants  of  warranty  to  which  a  pur- 
chaser is  entitled,  be  omitted  from  his  deed,  equity  will  cause 
them  to  be  inserted.  But  the  mere  fact  that  the  title  turns  out 
to  be  bad  will  not  justify  a  court  of  equity  in  reforming  a  con- 
veyance without  warranty,  so  as  to  include  a  covenant  of  general 
warranty,  when  the  purchaser  was  fully  aware  of  the  character  of 
the  instrument  he  accepted,  and  there  was  no  mistake  on  the  part 
of  any  one  as  to  its  contents.  If  the  instrument  perfectly  repre- 
sents the  understanding  of  the  parties,  it  will  not  be  reformed 
merely  because  one  of  the  parties  might  have  exacted  a  different 
instrument,  if  he  had  known  of  facts  making  it  desirable  for  him 
to  do  so.30 

§  223.  Mistake  of  law.  A  mistake  of  law  occurs  where  the 
contents  of  the  deed  are  such  as  they  were  intended  to  be,  but 
through  misconstruction  or  ignorance  of  the  law  those  contents  do 
not  embody  the  real  intention  of  the  parties,  nor  amount  to  such 

"Adams  Eq.  (5th  Am.  ed.)  345  (172). 

27  Campbell  v.  Johnson,  44  Mo.  247 ;  Jennings  v.  Brizendine,  44  Mo.  332. 

MRobbins  v.  Mayer,  76  Ind.  381. 

19 Andrew  v.  Spurr,  8  Allen  (Mass.),  412.  In  this  case  the  original  con- 
tract, which  was  oral,  reserved  to  the  grantor  the  rights  to  cut  and  remove 
certain  timber  from  the  premises.  After  the  deed  was  executed  the  purchaser 
repudiated  this  reservation. 

"Whittemore  v.  Farrington,  76  N.  Y.  452. 


REFORMATION    OF    THE    CONVEYANCE.  561 

a  conveyance  as  the  grantee  might  have  insisted  upon  in  the  first 
instance;31  for  example,  where  the  purchaser  ignorantly  accepts  a 
deed  executed  by  an  attorney  in  fact  in  his  own  name  instead  of 
lliat  of  the  principal.32  An  erroneous  opinion  as  to  the  legal  effect 
and  operation  of  a  conveyance,  developed  by  events  subsequent  to 
its  execution,  is  a  mistake  of  law,  and,  it  has  been  held,  furnishes 
no  ground  for  reformation  of  the  deed.33  A  number  of  cases  may 
be  found  in  which  it  is  declared  that  a  mistake  of  law  is  no  ground 
upon  which  a  deed  may  be  reformed  in  equity.34  They  hold  that 
no  equity  arises  when  the  court  is  not  asked  to  make  the  deed 
what  the  parties  intended,  but  to  make  it  that  which  they  did  not 
intend,  but  would  have  intended  if  they  had  been  better  advised. 
This,  however,  is  a  disputed  question,  and  many  cases,  perhaps  a 
preponderance  of  authority,  adopt  the  contrary  view.35  Where  it 
is  admitted  that  an  instrument  executed  in  pursuance  of  a  prior 
agreement  by  which  both  parties  meant  to  abide,  is  inconsistent 
with  the  purpose  for  which  it  was  designed,  or  that  by  reason  of 

11  Burt  v.  Wilson,  28  Cal.  632 ;  87  Am.  Dec.  142.  Bradford  v.  Bradford,  54 
N.  H.  463. 

"Personneau  v.  Blakely,  14  111.  15. 

88  Kelly  v.  Turner,  74  Ala.  513.  This  was  a  case  in  which  a  married  woman 
sought  to  have  a  conveyance  to  herself  reformed  so  as  to  show  that  the  con- 
sideration thereof  was  her  separate  statutory  estate,  consisting  of  money 
inherited  from  her  father,  and  thereby  protect  the  property  conveyed  from 
the  creditors  of  her  husband.  The  application  was  refused. 

"Allen  v.  Anderson,  44  Ind.  395;  Baldwin  v.  Kerlin,  46  Ind.  426;  Barnes 
v.  Bartlett,  47  Ind.  98;  Nicholson  v.  Caress,  59  Ind.  39;  Easter  v.  Severin, 
78  Ind.  540. 

"Gale  v.  Morris,  29  N.  J.  Eq.  222;  Warner  v.  Sisson,  29  N.  J.  Eq.  141. 
Dupre  v.  Thompson,  4  Barb.  (N.  Y.)  279.  Alexander  v.  Newton,  2  Grat. 
(Va.)  266.  Allen  v.  Elder,  76  Ga.  674;  Wyche  v.  Greene,  16  Ga.  49;  Brew- 
ton  v.  Smith,  28  Ga.  442.  Brock  v.  O'Dell,  (S.  C.)  21  S.  E.  Rep.  976. 
Canedy  v.  Marcy,  13  Gray  (Mass.),  373.  Crum  v.  Loud,  23  Iowa,  219;  Now- 
lin  v.  Pyne,  47  Iowa,  293;  Baker  v.  Massey,  50  Iowa,  399;  Reed  v.  Root,  59 
Iowa,  359.  Stone  v.  Hale,  17  Ala.  557;  52  Am.  Dec.  185.  In  McDonnell  v. 
Milholland,  48  Mel.  540,  it  seems  to  have  been  admitted  that  upon  satisfactory 
evidence  of  mistake  in  conveying  premises  to  the  grantees  as  joint  tenants 
instead  of  tenants  in  common,  the  error  would  be  relieved  against.  Such  a 
mistake  would  appear  to  be  necessarily  a  mistake  of  law,  as  it  must  be  pre- 
sumed that  the  parties  were  aware  of  the  way  in  which  the  deed  was  drawn, 
but  misconstrued  its  effect.  In  Whitehead  v.  Brown,  18  Ala.  682,  a  deed  was 
reformed  on  the  ground  of  a  mistake  of  the  parties  in  supposing  that  it  was 
sufficient  to  create  in  the  grantee  such  an  estate  as  would  be  free  from  lia- 
bility for  the  debts  of  her  husband. 

36 


562  MARKETABLE   TITLE    TO    REAL   ESTATE. 

some  mistake  of  both  parties,  it  fails  to  express  their  intention, 
a  court  of  equity  will  correct  it,  although  the  mistake  be  one  of 
law.36  These  cases,  it  is  believed,  establish  the  better  doctrine. 
Most  of  the  decisions  which  declare  that  a  deed  may  not  be  re- 
formed where  the  mistake  is  one  of  law,  are  founded  upon  author- 
ities which  maintain  that  such  a  mistake  is  no  ground  upon  which 
to  rescind  an  executed  contract.  It  may  be  doubted  whether  these 
authorities  are  in  point.  Rescission  is  the  annulment  or  abro- 
gation of  the  contract,  involving  the  risk  of  inability  to  place 
the  parties  in  statu  quo,  in  itself  a  most  serious  consequence,  while 
reformation  of  the  conveyance  does  not  touch  the  contract  nor 
displace  either  party,  but  simply  makes  effectual  that  which  their 
ignorance  or  mistake  rendered  abortive.  If  a  purchaser  buys  a 
fee  simple,  a  fact  easily  shown  by  the  purchase  price  and  other 
surrounding  circumstances,  and  accepts  a  conveyance  which  the 
parties  deem  sufficient  to  convey  the  fee,  but  which  is  in  fact 
insufficient  for  that  purpose,  an  unconscionable  wrong  would  be 
inflicted  upon  the  purchaser  by  refusing  to  reform  the  deed  and 
by  permitting  the  vendor  to  reap  the  benefits  of  the  mistake.  The 
court  merely  enforces  the  original  agreement  between  the  parties 
when  it  reforms  a  deed,  and  it  would  seem  inequitable  to  deprive 
either  party  of  that  right,  merely  because  their  own  efforts  to 
complete  the  contract  had,  from  mistake  or  ignorance  of  law  in  the 
selection  and  prepartion  of  the  means,  proven  ineffectual. 

It  is  not  always  easy  to  determine  whether  the  insufficiency  of 
the  conveyance  complained  of  is  due  to  a  mistake  of  fact  or  to  a 
mistake  of  law.  If  the  parties  agree  upon  the  contents  and 
instruct  a  draftsman  to  draw  a  conveyance  in  accordance  with 
such  agreement,  that  is,  give  specific  directions  as  to  the  contents 
of  the  deed,  and  the  draftsman  should  omit  any  matter  upon 
which  they  had  agreed  or  insert  any  matter  upon  which  they  had 
not  agreed,  and  they  should  execute  the  deed  in  ignorance  of  such 
omission  or  insertion  that,  it  is  clear,  would  be  a  mistake  of  fact.37 

"Kornegay  v.  Everett,  99  N.  C.  30;  5  S.  E.  Rep.  418.  Benson  v.  Markol, 
(Minn.)  36  Alb.  L.  J.  44. 

"  Adams  Eq.  (oth  Am.  ed.)  342  (169).  A  mistake  in  the  description  of 
land  intended  to  be  conveyed  is  a  rristake  of  fact  and  not  of  law.  McCasland 
v.  Life  Ins.  Co.,  108  Ind.  130;  9  W.  E.  Rep.  119. 


BEFOBMATION    OF   THE    CONVEYANCE.  563 

On  the  other  hand,  if  the  parties  should  debate  as  to  whether 
certain  matters  should  be  inserted  in  or  omitted  from  the  deed, 
and  should  err  in  their  conclusions,  that  would  plainly  be  a  mis- 
take of  law.38  Lastly,  if  the  parties  should  neither  give  directions 
as  to  the  contents  of  the  deed  nor  discuss  its  provisions  before 
execution  and  acceptance,  and  the  deed  should  be  not  such  as  the 
purchaser  had  a  right  to  require  —  as  if  it  should  lack  a  seal,  or 
proper  words  of  conveyance,  or  should  omit  the  name  of  the 
grantee  —  this,  too,  it  seems,  would  be  treated  as  a  mistake  of 
fact,  that  is,  the  omission  of  these  requisites  would  be  attributed 
to  accident  and  oversight  and  not  to  an  impression  of  the  parties 
that  the  deed  was  sufficient  without  them.39  There  is,  therefore, 
it  would  appear,  a  disposition  to  bring  within  the  rule  prohibiting 

"Adams  Eq.  (5th  Am.  ed.)  344  (170).  In  other  words,  if  it  appear  that 
the  instrument  contained  the  precise  language  the  parties  intended  to  should 
contain,  the  mistake,  if  any,  is  a  mistake  of  law.  Easter  v.  Severin,  78  Ind. 
540. 

89 See  Canedy  v.  Marcy,  13  Gray  (Mass.),  373,  where  it  was  said  that  if  a 
deed  has  been  imperfectly  drawn,  and  the  parties  have  been  misled  by  a  mis- 
placed confidence  in  the  skill  of  the  draftsman,  it  can  hardly  be  said  to  be  a 
mistake  of  law,  but  is  rather  a  mistake  of  fact.  To  this  class  may  be  re- 
ferred those  cases  which  hold  that  a  deed  may  be  reformed  by  inserting  the 
word  "  heirs  "  omitted  from  the  granting  clause.  Springs  v.  Harven,  3  Jones 
Eq.  (N.  C.)  96;  Rutledge  v.  Smith,  1  Busb.  Eq.  (N.  C.)  283.  Wright  v. 
Dclafield,  23  Barb.  (N.  Y.)  498.  Wanner  v.  Sisson,  29  N.  J.  Eq.  141;  Coe  v. 
N.  J.  Midland  R.  Co.,  31  N.  J.  Eq.  28.  But  see  Nicholson  v.  Caress,  59  Ind. 
39,  where  it  was  said  that  if  the  parties  execute  a  deed  in  ignorance  that  it 
does  not  contain  the  word  "heirs"  that  is  a  mistake  of  fact;  but  if  they 
are  not  ignorant  of  the  omission,  and  look  upon  the  deed  as  sufficient  to  carry 
an  estate  of  inheritance,  that  is  a  mistake  of  law.  In  such  a  case,  if  the 
pleadings  do  not  aver  the  ignorance  of  the  parties  of  the  omission  from  the 
deed,  the  complainant  will  not  be  entitled  to  relief.  If  a  deed  be  imperfectly 
executed,  it  will  be  reformed  at  the  suit  of  the  grantee.  Sumner  v.  Rhodes, 
14  Conn.  135;  Smith  v.  Chapman,  4  Conn.  344.  As  where  it  lacks  a  seal: 
Michel  v.  Tinsley,  69  Mo.  442;  Mastin  v.  Holley,  61  Mo.  196.  Galbraith  v. 
Dilday,  152  111.  207;  38  N.  E.  Rep.  572.  Or  omits  the  name  of  the  grantee: 
Parlin  v.  Stone,  1  McCrary  (C.  C.),  443.  Courtright  v.  Courtright,  63  Iowa, 
356;  19  N.  W.  Rep.  255;  Nowlin  v.  Pyne,  47  Iowa,  293.  Stowell  v.  Haslett, 
5  Lans.  (N.  Y.)  380.  So,  also,  where  the  signature  of  the  grantor  is  lacking. 
Martin  v.  Nixon,  92  Mo.  26.  Mere  clerical  errors,  such  as  inconsistent 
dates,  may  always  be  corrected.  Moore  v.  Wingate,  53  Mo.  398.  If  a  con- 
veyance be  defectively  executed  by  one  acting  under  a  power,  as  where  it 
purports  to  be  the  act  of  the  attorney  and  not  of  the  principal,  it  will  be 
reformed  so  as  to  operate  as  the  deed  of  the  principal.  Willard  Eq.  Jur.  83. 
Gerdes  v.  Moody,  41  Cal.  335. 


564  MARKETABLE   TITLE    TO    REAL    ESTATE. 

the  reformation  of  deeds  in  cases  of  mistake  of  law  only  cases  in 
which  the  error  is  of  an  affirmative  kind,  that  is,  those  in  which 
the  attention  of  the  parties  must  necessarily  have  been  drawn  to 
the  question  of  the  sufficiency  of  the  instrument  or  some  of  its 
provisions,  and  they  have  erred  in  their  conclusions.40 

§  224.  Mutuality  of  mistake.  Fraud.  As  a  general  rule,  there 
can  be  no  reformation  of  a  deed  on  the  ground  of  mistake  unless 
the  complainant  shows  that  the  mistake  was  mutual.41  And  one 
who  seeks  to  rectify  an  instrument  on  the  ground  of  mistake  must 
be  able  to  prove  not  only  that  there  has  been  a  mistake,  but  must 
be  able  to  show  exactly  the  form  to  which  the  deed  ought  to  be 
brought  in  order  that  it  can  be  set  right  according  to  what  was 
really  intended  by  the  parties;42  and  must  be  able  to  establish  in 
the  most  clear  and  satisfactory  manner,  that  the  alleged  intention 
of  the  parties  to  which  he  desires  to  make  the  instrument  con- 
formable continued  concurrently  in  the  minds  of  all  parties  down 
to  the  time  of  its  execution.43  Of  course  a  court  of  equity  has  no 
jurisdiction  to  reform  a  deed  simply  on  the  ground  that  one  of  the 
parties  thereto  has  erred  in  its  construction ;  there  being  no  aver- 
ment or  proof  of  fraud,  accident  or  mistake.44  "  The  proposition 
which  lies  at  the  foundation  of  all  suits  to  reform  is,  that  the  court 
cannot  make  such  a  contract  as  it  thinks  the  parties  ought  to  have 

*•  An  illustration  of  this  class  of  cases  may  be  found  in  the  case  of  Oswald 
v.  Sproehule,  16  111.  App.  368.  The  difficulty  here  was  that  a  clause,  by 
which  the  purchaser  was  exempted  from  liability  from  certain  immature  taxes 
and  assessments  on  the  granted  premises,  was  not  broad  enough  to  include 
a  certain  other  assessment..  This  was  held  a  mistake  in  the  purchaser's  con- 
struction of  the  deed,  and  one  against  which  the  court  could  not  relieve. 

"Adams  Eq.  (5th  Am.  ed.)  344  (171).  Grubb's  Appeal,  90  Pa.  St.  228. 
Remillard  v.  Prescott,  8  Oreg.  37;  McCoy  v.  Bayley,  8  Oreg.  196.  Long 
delay  of  a  party  in  taking  advantage  of  the  mistake *is  a  strong  circumstance 
to  establish  the  mutuality  of  the  mistake;  as  where  the  grantee  delayed 
action  for  ten  years  to  recover  for  a  breach  of  the  covenant  against  incum- 
brances,  the  defense  being  that  it  was  mutually  understood  between  the 
parties  that  the  existence  of  a  railroad  right  of  way  across  the  premises 
should  be  excluded  from  the  operation  of  the  covenant.  Fierce  v.  Houghton, 
(Iowa)  98  N.  W.  Eep.  306. 

**Kerr  Fraud  &  Mistake  (Am.  ed.),  421.  Guilmartin  v.  Urquehart,  82 
Ala.  570;  1  So.  Rep.  897.  Silbar  v.  Ryder,  63  Wis.  106;  23  N.  W.  Rep.  106. 

"Language  of  the  court  in  Ranney  v.  Smith,  32  N.  J.  Eq.  28,  citing  Kerr 
F.  &  M.  (Am.  ed.)  421. 

"Grubb's  Appeal.  90  Pa.  St.  228. 


REFORMATION  OF  THE  CONVEYANCE.  565 

made,  or  would  have  made  if  better  informed,  but  merely  makes 
it  what  the  parties  intended  it  should  be.  Every  reformation  of 
a  contract  by  the  court  necessarily  presupposes  that  there  has  been 
a  meeting  of  the  minds  of  the  parties  —  an  agreement  actually 
entered  into  —  but  for  some  cause  they  have  failed  fully  or  accu- 
rately to  express  it  in  the  writing."45  A  mistake  of  one  party  only 
may  be  ground  for  rescinding  or  refusing  specific  performance  of 
the  contract,  but  cannot  justify  an  alteration  of  the  terms  of  the 
agreement,  which,  in  such  a  case,  would  necessarily  result  from 
a  reformation  of  the  conveyance.46  The  mistake  must  not  only 
have  been  mutual,  but  the  pleadings  must  allege  it  to  have  been 
so.  Therefore,  if  neither  the  bill  nor  the  accompanying  affidavits 
contain  such  an  allegation,  the  complainant  will  not  be  entitled  to 
relief.47 

The  rule  that  a  mistake  must  be  mutual  to  entitle  the  grantee 
to  relief  does  not  mean  that  the  mistake  must  be  mutual  in  all 
cases  between  the  grantor  and  the  grantee;  it  suffices  if  the  mis- 
take is  mutual  between  the  grantee  and  other  persons  having  in- 
terests under  the  deed,  the  grantor  being  a  mere  nominal  party.48 
Nor  does  the  rule  apply  where  the  party  against  whom  relief  is 
sought  fraudulently  permitted  the  other  party  to  act  in  ignorance 

f— 

45  St.  Anthony's  Falls  W.  P.  Co.  v.  Merriman,  35  Minn.  42 ;  27  N.  W.  Rep. 
199.  Here  the  deed  conveyed  a  water  power  of  "  fifty  cubic  feet  per  second," 
and  the  plaintiff  contended  that  both  parties  being  mistaken  in  the  belief 
that  the  amount  specified  was  sufficient  to  operate  the  machinery  of  a  cer- 
tain mill,  he  was  entitled  to  have  the  deed  reformed  so  as  to  convey  a  water 
power  adequate  for  that  purpose.  This  contention  was  denied  upon  the 
grounds  stated  in  the  text. 

"Adams  Eq.   (5th  Am.  ed.)  344  (171). 

47  Schoonover  v.  Dougherty,  65  Ind.  463.     Ramsey  v.  Smith,  32  N.  J.  Eq.  28. 

48  Murray  v.  Sells,  53  Ga.  257.     In  this  case  Sells  sold  his  homestead  and 
purchased  a  property   from  Rondeau,  who   had  only  an  equitable  title,   the 
legal  title  being  in  Orme.     Sells  agreed  with  Rondeau   that  he    (Rondeau) 
should  procure   a  conveyance  of  the  property  to   Sells'  wife  and  child,   but 
Rondeau,  through  ignorance,  inadvertence  or  mistake,  procured  a  conveyance 
from  Orme  to  Sells'  wife  alone,  omitting  the  child.     Here  there  was  no  mis- 
take on  the  part  of  the  grantor,  Orme,  for  the  deed  was  executed  by  him  in 
strict  pursuance  of  the  directions  he  had  received ;  but  there  being  a  mistake 
as  between  Rondeau  and  the  other  parties  in  interest,  the  deed  was  reformed 
so  as  to  express  their  true  intent. 


566  MARKETABLE    TITLE    TO    REAL   ESTATE. 

of  the  mistake.49  If  it  appear  that  the  mistake  was  known  to  one 
of  the  parties,  who,  with  knowledge  of  the  ignorance  of  the  other, 
nevertheless  kept  silent  when  he  should  have  spoken,  the  party 
having  knowledge  will  be  estopped  to  defeat  a  reformation  by 
alleging  that  he  knew  that  the  instrument  was  different  from  the 
agreement  and  that  the  mistake  was  not  mutual.50  Nor  in  such 
case  will  the  rights  of  the  complainant  be  affected  by  the  fact  that 
the  fraud  of  the  other  party  might  have  been  discovered  by  the 
exercise  of  ordinary  care.51  Therefore,  where  the  grantor  inserts 
in  his  deed  a  provision  by  which  the  purchaser  is  made  to  assume 
the  payment  of  an  incumbrance  on  the  premises,  and  then  induces 
the  purchaser  to  accept  the  deed  without  disclosing  to  him  the 
existence  of  such  provision,  equity  will  reform  the  deed.52  But 
mere  ignorance  of  the  contents  of  a  deed  from  failure  to  read  it, 
there  being  no  pretense  of  mutual  mistake,  is  no  ground  upon 
which  to  reform  it,  unless  it  appear  that  fraud  was  practiced  upon 
the  complainant  by  one  occupying  a  relation  of  confidence  toward 
him.53 

§  225.  Mistakes  resulting  from  negligence.  It  has  been  held 
that  a  court  of  equity  will  not  reform  a  description  in  a  deed,  if 
the  misdescription  was  the  result,  not  of  mistake  of  the  parties, 
but  of  their  carelessness  and  negligence  in  not  procuring  a  correct 
description  before  executing  the  deed,  the  policy  of  the  law  being 
to  administer  relief  to  the  vigilant,  and  to  put  all  the  parties  upon 
the  exercise  of  a  reasonable  degree  of  diligence.54  But  the  same 

"Dane  v.  Berber,  28  Wis.  216;  James  v.  Cutler,  54  Wis.  172;  10  N.  W. 
Hep.  147.  De  Jarnatt  v.  Cooper,  59  Cal.  703.  Withouse  v.  Schaack,  57  How. 
Pr.  (N.  Y.)  310.  Winans  v.  Huyck,  71  Iowa,  459;  32  N.  W.  Rep.  422.  Ber- 
gen v.  Ebey,  88  111.  269.  Here,  after  instructions  had  been  given  the  drafts- 
men by  the  parties,  the  grantor  went  to  him  and  gave  him  other  instructions. 

MRoszell  v.  Roszell,  109  Ind.  354;   10  N.  E.  Rep.  114. 

81  Hitchins  v.  Pettingill,  58  N.  H.  3.     Monroe  v.  Skelton,  36  Ind.  302. 

52  Savings  Inst.  v.  Burdick,  20  Hun  (N.  Y.),  104.  See,  also,  Wells  v.  Yates, 
44  N.  Y.  525;  Botsford  v.  McLean,  45  Barb.  (N.  Y.)  478;  Rider  v.  Powell,  28 
N.  Y.  310. 

"Michael  v.  Michael,  4  Ired.  Eq.    (N.  C.)   349. 

"1  Story  Eq.  Jur.  §  146.  First  Nat.  Bank  v.  Gough,  61  Ind.  147;  Toops 
v.  Snyder,  70  Ind.  534.  Unless  confidence  is  reposed,  a  party,  before  signing 
a  deed,  is  put  upon  inquiry,  and  must  exercise  proper  and  reasonable  dili- 
gence. Withouse  v.  Schaack,  57  How.  Pr.  (N.  Y.)  310.  Where  the  parties 
failed  to  insert  the  number  of  the  square  in  which  the  premises  were  sit- 


EJSJFOBMATION    OF    THE    CONVEYANCE.  567 

court  has  held  that  this  rule  does  not  apply  in  its  fullest  sense  to 
the  correction  of  mistakes  merely  in  the  description  of  the  prem- 
ises.85 It  is  plain  that  a  rigid  enforcement  of  such  a  rule  would 
result  in  a  denial  of  relief  in  a  great  many  cases  of  mistake,  for 
most  mistakes  in  deeds  are  traceable  to  the  negligence  of  the 
parties,  certainly  those  that  are  visible  upon  the  face  of  the  instru- 
ment, such  as  the  omission  of  the  name  of  the  grantee  and  the  like. 
A  court  might  well  hesitate  to  rescind  an  executed  contract  where 
the  mistake  complained  of  was  the  consequence  of  the  complain- 
ant's negligence,  but  there  seems  to  be  no  very  strong  reason  why 
reformation  of  a  deed  should  be  denied  under  those  circumstances, 
since  that  is  doing  only  what  the  parties  themselves  intended  to 
do.  Therefore,  it  has  been  held  that  a  person  who  accepts  a  deed, 
ignorant  that  it  contains  a  provision  which  obliges  him  to  assume 
the  payment  of  a  mortgage  on  the  premises,  is  not  guilty  of  sucb 
negligence  as  will  preclude  him  from  relief.56 

§  226.  Nature  and  degree  of  evidence  required.  In  many  in- 
stances mistakes  in  conveyances  will  be  admitted  by  the  parties, 
or  will  appear  upon  the  face  of  the  instrument  itself.  No  diffi- 
culty arises  in  such  cases.57  But  if  the  defendant  deny  the 
existence  of  any  mistake,  and  the  alleged  mistake  does  not  appear 
upon  the  face  of  the  conveyance  itself  or  of  the  documents  coii- 
nected  therewith,  much  difficulty  may  arise  in  the  proof,  in  view 
of  the  presumption  of  law  that  the  conveyance  is  the  last  expres- 
sion of  the  intention  of  the  parties,  and  of  the  rule  which  forbids 
the  introduction  of  parol  testimony  of  any  contemporaneous  agree- 
ment or  understanding  inconsistent  with  the  conveyance.  Parol 

uated,  not  from  accident  or  mistake,  but  from  mere  want  of  recollection, 
it  was  held  that  the  deed  could  not  be  reformed,  though  the  grantee  might 
compel  specific  performance.  Leonard  v.  Mills,  24  Kans.  231.  But  inasmuch 
as  the  result  would  be  the  same  in  either  case,  it  is  not  easy  to  perceive  why 
the  deed  should  not  have  been  reformed  to  prevent  circuity  of  action. 

"Elliott  v.  Sackett,  108  U.  S.  132.     Morrison  v.  Collier,  79  Ind.  417. 

"Schaatz  v.  Keener,  87  Ind.  258.  Silbar  v.  Ryder,  63  Wis.  106;  23  N.  W. 
Rep.  106. 

"If  the  truth  of  the  bill  be  admitted  by  demurrer,  and  the  allegations 
showing  a  mistake  be  clear  and  positive,  the  complainant  will  be  entitled  to 
a  decree.  Moore  v.  Munn,  69  111.  591. 


568  MARKETABLE    TITLE    TO   EEAL   ESTATE. 

testimony,  however,  is  always  admissible  to  show  a  mistake;58  the 
difficulty  lies  in  distinguishing  between  mistake  proper  and  such 
matters  as  are  the  result  of  mistake  or  afterthought  on  one  side 
only.  If  the  mistake  appear  on  the  face  of  the  deed  it  may,  of 
course,  be  corrected  without  the  aid  of  extrinsic  evidence.59  Thus, 
in  one  case,  the  court  went  so  far  as  to  insert  a  granting  clause 
in  an  instrument  alleged  to  have  been  intended  as  a  deed,  but 
which,  except  for  the  presence  of  words  of  warranty,  would  have 
been  clearly  no  more  than  an  executory  contract  for  the  sale  of 
lands.60  But  if  evidence  aliunde  is  relied  upon  to  show  a  mistake 
it  must  be  in  the  highest  degree  clear,  positive  and  satisfactory.61 
The  burden  devolves  upon  the  complainant  to  show,  beyond  a 
reasonable  doubt,  the  existence  of  a  mistake.62 

The  mere  fact  that  a  deed  made  in  pursuance  of  an  executory 
contract  for  the  sale  of  lands,  conveys  a  lesser  or  a  greater  estate 
than  that  provided  for  in  the  contract,  does  not,  of  course,  neces- 
sarily establish  a  case  for  reformation  of  the  deed,  for  in  such  a 
case  the  deed  is  looked  upon  as  the  last  expression  of  the  intent 
of  the  parties,  and  the  presumption  is  that  the  change  was  made 
by  mutual  agreement.  There  must  be  clear  and  positive  evidence 
to  show  that  the  change  was  the  result  of  fraud  and  mistake,  to 
justify  a  reformation  of  the  deed.63 

"Bush  v.  Hicks,  2  Thomp.  &  C.  (N.  Y.)  356.  Farley  v.  Bryant,  32  Me. 
474.  Wagenblast  v.  Washburn,  12  Cal.  208.  In  a  suit  to  reform  a  deed,  evi- 
dence of  declarations  of  the  grantor  contemporaneous  with  the  execution  of 
the  deed,  is  admissible  to  show  what  he  intended  to  convey.  Cake  v.  Peet, 
49  Conn.  501. 

89  Wagenblast  v.  Washburn,  12  Cal.  208.  Creighton  v.  Pringle,  3  S.  C.  77. 
Here  the  deed  was  reformed  by  substituting  the  word  "  hereinbefore "  for 
"  hereafter,"  the  context  showing  that  the  former  word  was  intended. 

•"Michael  v.  Tinsley,  69  Mo.  442. 

"Story  Eq.  Jur.  §  152;  Adams  Eq.  (5th  Am.  ed.)  345  (171).  Sawyer  v. 
Hovey,  3  Allen  (Mass.),  331;  81  Awi.  Dec.  659.  Nicoll  v.  Mason,  49  111.  358; 
Hamlon  v.  Sullivant,  11  111.  App.  423.  Wells  v.  Ogden,  30  Wis.  637.  Bates 
v.  Bates,  56  Mich.  405;  23  N.  W.  Rep.  63.  Jarrett  v.  Jarrett,  27  W.  Va. 
743.  Strayn  v.  Stone,  47  Iowa,  333.  The  evidence  of  mistake  must  be 
such  as  will  overcome  the  strong  presumption  in  favor  of  written  instru- 
ments. Remillard  v.  Prescott,  8  Oreg.  37. 

82  Miller  v.  Rhuman,  62  Ga.  332.  Willis  v.  Sanders,  51  N.  Y.  Super.  Ct. 
384.  McTucker  v.  Taggart,  29  Iowa,  478.  St.  Anthony's  Falls  Water  Power 
Co.  v.  Merriman,  35  Minn.  42;  27  N.  W.  Rep.  199. 

"Whitney  v.  Smith,  33  Minn.  124;  22  N.  W.  Rep.  181.  Dunham  v.  New 
Britain,  55  Conn.  378. 


REFORMATION    OF    THE    CONVEYANCE.  569 

§  227.  Laches  in  application  for  relief.  The  general  rule  is  that 
a  party  seeking  relief  in  equity  on  the  ground  of  mistake  must 
act  promptly.64  The  reason  is  that  delay  in  such  cases  increases 
the  difficulty  of  placing  the  parties  in  statu  quo,  or  may  a...*ect  the 
rights  of  third  parties.  There  has  been  a  disposition  in  some  cases 
to  extend  this  rule  to  suits  for  the  reformation  of  deeds,65  but  the 
better  opinion  seems  to  be  that  mere  lapse  of  time  is  no  bar  to 
such  a  suit  where  possession  has  all  the  while  been  held  according 
to  the  real  intention  of  the  parties,  and  the  condition  of  the  defend- 
ant has  not  been  made  worse  by  the  delay,  and  the  rights  of  no 
third  party  have  intervened.66  Nor  in  any  event  will  laches  be  im- 
puted to  the  complainant  until  after  discovery  of  the  mistake.67 
Nor  where  it  appears  that  the  complainant  has  made  repeated 
efforts  to  have  the  mistake  corrected  without  a  law  suit.68  A  mis- 
take occurred  in  a  deed  in  1816.  The  grantee  took  possession 
and  remained  in  possession  until  1848,  when  one  who  had  suc- 
ceeded to  the  rights  of  the  grantor  in  some  way  obtained  pos- 
session. The  grantee  filed  a  bill  in  1851  to  correct  the  mistake, 
and  it  was  held  that  he  was  not  precluded  from  relief  by  the 
delay.69  The  case  tends  to  establish  the  principle  that  laches  is 
not  imputable  to  the  grantee  until  after  some  adverse  claim  to 
the  premises  has  been  made. 

§  228.  Defective  execution  of  statutory  power.  It  seems  that 
equity  will  not,  as  a  general  rule,  aid  a  defective  execution  of  a 
power,  that  is,  will  not  supply  any  matter  for  the  want  of  which 
the  legislature  declares  a  deed  void,  since  the  effect  would  be  to 

"Willard  Eq.  Jur.  69;  Story  Eq.  Jur.  §  1520. 

•Sable  v.  Maloney,  48  Wis.  331;  4  N.  W.  Rep.  479.  Here  fifteen  years  had 
elapsed  after  discovery  of  the  mistake  before  an  application  for  reformation 
was  made.  Farley  v.  Bryant,  32  Me.  474,  where  it  was  said  that  lapse  of 
time  tended  to  show  either  that  there  was  no  mistake,  or  that  the  mistake, 
if  any,  had  been  waived. 

"Canedy  v.  Marcy,  13  Gray  (Mass.),  373.  Mills  v.  Lockwood,  42  111.  111. 
First  Nat.  Bank  v.  Wentworth,  28  Kans.  183.  Kirk  v.  Zell,  1  McArthur  (D. 
C.),  116.  In  Farley  v.  Bryant,  32  Me.  474,  it  was  said  that  lapse  of  time 
would  be  immaterial  to  the  right  of  reformation,  if  the  premises  were  unim- 
proved lands. 

"  Stone  v.  Hale,  17  Ala.  557;  52  Am.  Dec.  185. 

"Thompson  v.  Marshall,  36  Ala.  504;  76  Am.  Dec.  328. 

*•  Farmers  &  Mech.  Bank  v.  Detroit,  12  Mich.  445. 


570  MARKETABLE   TITLE    TO    EEAL   ESTATE. 

make  nugatory  the  legislative  enactment.70  But  this  rule  has  no 
application  where  an  officer,  selling  and  conveying  under  a  statute, 
complies  with  all  the  provisions  of  the  statute,  and  merely  misde- 
scribes  the  land  in  the  conveyance  which  he  executes  in  pursuance 
of  the  sale.  In  such  a  case  equity  has  jurisdiction  to  decree  the 
execution  of  a  new  deed  correcting  the  mistake.71 

§  229.  IN  FAVOR  OF  AND  AGAINST  WHOM  BELIEF  MAY  BE 
HAT).  IN  GENERAL.  The  right  to  reformation  of  a  deed  on  the 
ground  of  mistake  is  not  confined  to  the  immediate  parties  to  the 
instrument,  but  extends  to  all  persons  who  stand  in  the  place  of 
such  parties  and  who  are  injured  by  the  mistake.72  To  maintain 
the  action  the  complainant  must  be  either  a  party  or  a  privy  to  the 
deed.73  Suits  for  the  reformation  of  conveyances  on  the  ground  of 
mistake  have  been  frequently  brought  by  remote  assignees  of  the 
original  grantee.74  But  where  a  judicial  sale  intervened  between 
the  original  grantee  and  the  remote  grantee  it  was  held  that  the 
deed  in  which  there  was  an  erroneous  description  could  not  be 
reformed,  since  the  effect  would  be  to  give  to  the  plaintiff  land 
which  the  court  had  not  Directed  to  be  sold.75  !N"or  can  a  grantee, 

70 1  Story  Eq.  Jur.  §  117.  See  infra,  this  chapter,  §  233,  "Married 
Women." 

71  Houx  v.  Bates  County,  61  Mo.  391. 

71  See,  generally,  cases  cited  below.  Pomeroy  Eq.  Juris.  §§  845,  870,  1376. 
Mills  v.  Lock-wood,  42  111.  112. 

"Story  Eq.  Jur.  §  165.  Willis  v.  Sanders,  51  N.  Y.  Sup.  Ct.  380,  where 
it  was  also  held  that  the  mere  fact  that  a  person  is  a  grantee  of  one  to 
whom  a  deed  was  made  does  not  necessarily  so  connect  him  with  the  contract 
as  tb  entitle  him  to  maintain  F  suit  to  reform  the  deed. 

The  complainant  should  not  r.eglect  to  aver  and  prove  that  he  holds  under 
the  deed  which  he  seeks  to  reform.  In  Ballentine  v.  Clark,  38  Mich.  395,  the 
court  said:  "The  testimony  entirely  fails  to  trace  title  into  complainant; 
nml.  as  this  is  essential  to  his  recovery,  he  must  fail  on  this  record.  None 
of  the  deeds  in  the  chain  of  title  appear.  It  sterns  to  have  been  taken  for 
granted  that  the  only  proof  required  was  the  identification  of  the  premises 
described  in  the  bill.  But  unless  complainant  shows  that  he  holds  under  the 
deed  sought  to  be  reformed  he  makes  no  showing  of  equities." 

74  Instances  may  be  found  in  Taber  v.  Shattuck,  55  Mich.  370;  21  N.  W. 
Rep.  371.  Bradshaw  v.  Atkins,  110  111.  323.  Crippen  v.  Baumes,  15  Hun 
(N.  Y.),  136.  Gerdes  v.  Moody,  41  Cal.  335.  Blackburn  v.  Randolph,  33 
Ark.  119.  In  May  v.  Adams,  58  Vt.  74;  3  At).  Rep.  J87.  the  suit  was  be- 
tween grantees  of  the  original  grantor  and  grantee  respectively 

"Rogers  v.  Abbott,  37  Ind.  138.  No  authorities  were  cited  to  this  propfr 
sition,  and  the  grounds  upon  which  it  rests  are  by  no  means  clear.  Land  h%* 


REFORMATION    OF    THE    CONVEYANCE.  571 

immediate  or  remote,  compel  a  reformation  of  the  deed  so  long  as 
he  is.  in  default  in  the  payment  of  any  part  of  the  purchase 
money.76  He  who  asks  equity  must  do  equity.  Reformation  of 
the  conveyance  is  a  species  of  specific  performance,  and  specific 
performance  by  the  grantor  could  not  be  compelled  so  long  as  any 
part  of  the  purchase  money  remained  unpaid. 

§  230.  Reformation  in  favor  of  grantor.  Reformation  of  deeds 
on  the  ground  of  mistake  will  of  course  be  decreed  in  favor  of 
the  grantor  as  well  as  the  grantee  if  the  mistake  be  clearly  estab- 
lished, as  where  the  deed  includes  lands  not  purchased  by  the 
grantee  and  not  intended  to  be  conveyed.77  But  if  the  existence  of 
the  mistake  is  denied,  the  position  of  the  grantor  becomes  different 
in  view  of  the  maxim  verba  chartarum  fortius  accipiuntur  contra 

been  erroneously  described  by  Conley  in  his  deed  to  Abbott  as  the  S.  E. 
instead  of  the  N.  E.  quarter.  This  error  was  perpetrated  through  several 
mesne  conveyances,  including  a  sheriff's  deed,  until  the  land  came  to  the 
plaintiff,  possession  of  the  N.  E.  quarter  passing  with  all  the  deeds.  Mean- 
while Abbott,  discovering  the  error,  procured  Conley  to  execute  a  deed  of  the 
N.  E.  quarter  to  his  (Abbott's)  son,  who  thereupon  claimed  the  land  in 
plaintiff's  possession.  Plaintiff  then  brought  an  action  to  reform  the  orig- 
inal deed  from  Conley,  and  the  court  held  as  stated  in  the  text,  intimating, 
however,  that  the  plaintiff  was  not  without  a  remedy  of  some  kind.  See, 
also,  Rice  v.  Poynton,  15  Kans.  263,  and  Keepfer  v.  Force,  86  Ind.  81.  Where 
a  mistake  in  the  description  of  mortgaged  lands  is  carried  into  the  decree  of 
foreclosure  it  may  be  corrected  by  reforming  and  reforeclosing  the  mortgage. 
McCashland  v.  Life  Ins.  Co.,  108  Ind.  130.  In  Thomas  v.  Dockins,  75  Ga. 
347,  a  mistake  in  a  sheriff's  deed  was  corrected  in  favor  of  a  subsequent 
grantee  as  against  the  execution  defendant.  And  in  Parker  v.  Starr,  21  Neb. 
680;  33  N.  W.  Rep.  424,  a  deed  under  a  judicial  sale  was  reformed  at  the 
instance  of  a  remote  grantee.  In  Martin  v.  Dollar,  32  Ala.  422,  it  was  held 
that  a  sheriff's  deed  will  not  be  reformed  for  error  in  the  description  of  the 
premises,  if  the  sale  itself  is  a  nullity,  as  having  been  made  under  a  void 
judgment.  A  mistake  in  the  description  of  mortgaged  premises  may  be  re- 
formed, even  after  foreclosure  of  the  mortgage.  Congers  v.  Mericles,  75  Ind. 
443.  Davenport  v.  Scovil,  6  Ohio  St.  459.  A  court  of  equity  has  power  to 
correct  errors  in  a  sheriff's  deed.  Bradshaw  v.  Atkins,  110  111.  323;  Gil- 
breath  v.  Dilday,  152  111.  207;  38  N.  E.  Rep  572. 

"McFadden  v.  Rogers,  70  Mo.  421.     Conaway  v.  Gore,  21  Kans.  725. 

"Bush  v.  Hicks,  60  N.  Y.  298.  Fuchs  v.  Treat,  41  Wis.  404.  Damm  v. 
Moors,  48  Mich.  510.  Wilcox  v.  Lucas,  121  Mass.  21.  Hutson  v.  Fumas,  31 
Iowa,  154.  Burr  v.  Hutchinson,  61  Me.  514.  Pugh  v.  Brittain,  2  Dev.  Eq. 
(N.  C.)  34.  Cooke  v.  Husband,  11  Md.  492.  Where  lands  not  sold  under  a 
decree  are  by  mistake  reported  as  sold,  and  a  deed  of  the  same  is  made  by 
the  court,  such  deed  will  be  reformed,  as  against  the  grantor  or  his  heirs. 
Stiles  v.  Winder,  35  Ohio  St.  555. 


572  MARKETABLE    TITLE    TO    REAL   ESTATE. 

proferentem;  the  words  of  a  deed  shall  be  taken  most  strongly 
against  him  who  employs  them.  It  has  also  been  held  that  the 
grantor  will  not  be  entitled  to  relief  if  a  wrong  description  inserted 
in  his  deed  was  the  result  of  his  own  gross  negligence.78  Nor  will 
the  court  reform  a  deed,  absolute  on  its  face,  by  inserting  a  con- 
dition therein,  at  the  suit  of  the  grantor.79  Nor  can  a  mistake  as 
to  the  quantity  of  land  conveyed  be  corrected,  on  his  behalf,  if, 
after  discovery  of  the  mistake,  he  receives  payment  of  the  purchase 
money  for  the  whole  land  and  surrenders  possession  to  the 
grantee.80  Nor  where  he  insists  upon  the  payment  of  the  purchase 
money  while  seeking  relief  on  the  ground  of  the  mistake.81  And 
it  has  been  intimated  that  a  grantor  conveying  all  of  his  interest 
is  not  entitled  to  relief  on  the  ground  that  such  interest  was 
greater  than  both  parties  supposed  it  to  be.82 

Against  whom  reformation  will  be  decreed.  A  deed  will  be  re- 
formed in  a  case  of  mistake,  not  only  as  against  the  original 
grantee,  but  as  against  all  who  claim  under,  or  are  in  privity  with 
him,  such  as  heirs,  devisees,  voluntary  grantees,  judgment  cred- 
itors and  purchasers  with  notice  of  the  mistake.83  The  person  or 
persons  whose  duty  it  is  to  reform  the  deed,  or  who  will  be  affected 
by  the  reformation,  should  always  be  made  parties  defendant  to 
the  suit.84  But  it  does  not  follow  that  it  is  necessary  in  all  cases 
to  make  the  grantor  a  defendant;  it  frequently  happens  that  he 
stands  indifferent,  for  example,  where  the  deed  is  made%  in  pur- 
suance of  directions  given  by  one  who  had  the  equitable  title  only, 
and  who  sold  his  bargain  to  the  person  who  became  the  grantee. 
In  such  a  case  it  is  not  necessary  to  make  the  grantor  a  party,  for 

w  Lewis  v.  Lewis,  5  Oreg.  169. 

79  Clark  v.  Drake,  3  Pinney   (Wis.),  228;  Law  v.  Hyde,  39  Wis.  345;  Mills 
v.   Seminary,  47  Wis.  354;  2  N.  W.  Rep.  550.     Here  the  grantor  desired  to 
reform  the  deed  by  inserting  in  it  a  provision  that  the  deed  should  be  void 
if  the  premises  should  cease  to  be  used  as  a  site  for  a  seminary. 

80  Wittbecker  v.  Watters,  69  Tex.  470;  6  S.  W.  Rep.  788. 

81  Dorr  v.  Steichen,  18  Minn.  26. 

**  Fly  v.  Brooks,  64  Ind.  50.  But  see  Baker  v.  Massey,  50  Iowa,  399,  where 
it  was  held  that  if  the  deed  embrace  an  interest  of  which  the  grantor  was 
ignorant,  he  will  be  entitled  to  reformation. 

83  Adams  Eq.    (5th  Am.  ed.)   340  (169),  n.     Grayson  v.  Weddle,  80  Mo.  39. 

84  Goodman  v.  Randall,  44  Conn.  321.     Bullock  v.  Whipp,  15  R,  I.  195;  2 
Atl.  Rep.  309,  obiter. 


BEFOKMATION    OF    THE    CONVEYANCE.  573 

his  interests  are  in  no  way  affected,  and  the  court  may  appoint 
a  commissioner  to  execute  the  reformed  deed.85  A  remote  grantee 
who  holds  under  a  deed  without  warranty,  need  not  make  his 
immediate  grantor  a  party  to  his  suit  for  reformation.86  If,  how- 
ever, the  plaintiff  holds  under  mesne  conveyances  with  warranty, 
it  has  been  held  that  he  must  make  the  grantees  parties.87  Where 
the  grantor  conveys  to  two  purchasers,  but  makes  a  mistake  as  to 
the  interest  which  each  is  to  receive,  he  is  not  a  necessary  party 
to  a  bill  to  correct  the  mistake.88 

§  231.  Purchasers  and  creditors.  If  the  vendor  should  sell  lot 
A,  but  by  mistake  should  convey  to  the  purchaser  lot  B,  and  after- 
wards a  third  person  should  purchase  lot  A  from  the  vendor  and 
take  a  conveyance  thereof  without  notice  of  the  mistake,  the  deed 
to  the  first  purchaser  could  not  be  reformed  as  against  the  second 
purchaser.89  Neither  could  such  a  deed  be  reformed  as  against 
judgment  creditors  of  the  vendor,  in  those  States  in  which 
judgment  creditors  are  protected  by  the  registry  acts.90  But  as 
against  a  subsequent  purchaser,  and,  it  is  apprehended,  a  creditor 

85  Baker  v.  Pyatt,  108  Ind.  61;  9  N.  E.  Rep.  112,  a  case  in  which  a  father, 
desiring  to  convey  his  whole  estate  to  his  sons  executed  a  deed  to  each,  but 
one  of  the  deeds  failed  to  take  effect  because  of  a  mistake  in  the  description. 
The  grantee  in  this  deed  was  held  entitled  to  maintain  an  action  to  reform 
his  deed  against  one  of  the  other  sons  who  was  in  possession  of  the  land  in- 
tended to  be  conveyed  to  the  plaintiff.  See,  also,  Roszell  v.  Roszell,  105  Ind. 
77 ;  4  N.  E.  Rep.  423. 

"•Farmers  &  Mech.  Bank  v.  Detroit,  12  Mich.  445. 

"Davis  v.  Rogers,  33  Me.  222. 

"  Briegel  v.  Moehler,  82  111.  257. 

"•Story  Eq.  Jur.  §  165;  Adams  Eq.  (5th  Am.  ed.)  340  (169),  n.  Berry  v. 
Lowell,  72  Ala.  14.  Ruppert  v.  Haske,  5  Mackey  (D.  C.),  262.  Boardman  v. 
Taylor,  66  Ga.  638;  Kilpatrick  v.  Stozier,  67  Ga.  247.  First  Nat.  Bank  v. 
Gough,  61  Ind.  147;  Hewitt  v.  Powers,  84  Ind.  295.  Farley  v.  Bryant,  32 
Me.  474;  Whitman  v.  Westman,  30  Me.  285.  Dart  v.  Barbour,  32  Mich.  267. 
Wilson  v.  King,  27  N.  J.  Eq.  374.  Willis  v.  Saunders,  51  N.  Y.  Super.  Ct. 
384.  I/ally  v.  Holland,  1  Swan  (Tenn. ),  396.  Whether  an  execution  creditor 
who  buys  in  the  realty  of  the  debtor  at  a  sale  under  the  execution  is  a  pur- 
chaser for  value  without  notice,  and  entitled  to  object  to  the  reformation  of  a 
prior  deed,  which,  when  reformed,  will  embrace  the  purchased  premises, 
quceret  Bailey  v.  Timberlake,  74  Ala.  221.  In  Carver  v.  Lasalette,  57  Wis. 
232;  15  N.  W.  Rep.  162,  a  deed  was  reformed  as  against  a  purchaser  under 
an  execution  against  the  grantor. 

••Freeman  on  Judgments,  §§  357,  359.  Goodbar  v.  Dunn,  61  Miss.  618. 
Martin  v.  Nixon,  92  Mo.  26 ;  4  S.  W.  Rep.  503.  Galway  v.  Melchow,  7  Neb. 
286.  Bush  v.  Bush,  33  Kans.  556.  Ruppert  v.  Haske,  5  Mackey  (D.  C.), 


574  MARKETABLE   TITLE    TO    REAL    ESTATE. 

of  the  grantor,  with  notice  of  the  mistake,  such  deed  might  always 
be  reformed  in  equity,  upon  the  same  principle  that  one  pur- 
chasing with  notice  of  an  equitable  estate  in  the  premises  in  favor 
of  a  third  person,  may,  himself,  be  compelled  to  perform  the  con- 
tract of  the  vendor.91  Possession  of  the  premises  in  respect  to 
which  the  mistake  was  made  will,  of  course,  be  deemed  sufficient 
to  put  the  purchaser  on  inquiry  and  charge  him  with  constructive 
notice  of  the  mistake.  As  respects  notice  from  the  deed  itself,  it 
is  equally  clear  that  the  record  of  a  deed  which,  by  mistake,  con- 
tains a  totally  erroneous  description  of  the  land  intended  to  be 
conveyed,  would  not  be  sufficient  to  put  a  subsequent  purchaser 

262.  In  Alabama  a  judgment  is  not  a  lien  on  equitable  estate,  and,  therefore, 
a  judgment  creditor  of  one  who  mortgages  an  equity  of  redemption  cannot 
object  to  the  reformation  of  the  mortgage.  Bailey  v.  Timberlake,  74  Ala. 
221.  In  Mississippi,  under  a  statute  declaring  unrecorded  deeds  void  as  to 
subsequent  creditors  as  well  as  purchasers,  it  has  been  held  that  a  court  of 
equity  will  not  correct  a  mistake  in  the  description  of  land  in  a  deed  against 
one  who,  having  actual  notice  of  the  mistake  at  the  time  of  the  purchase, 
bought  the  land  at  execution  sale  under  a  judgment  rendered  in  favor  of  a 
party  who  had  no  notice  of  the  mistake  at  the  time  he  recovered  Judgment. 
Nugent  v.  Priebatsch,  61  Miss.  402,  disapproving  Simmons  v.  North,  3  Sm. 
&  M.  (Miss.)  67.  A  judgment  creditor  whose  debt  was  made  before  the  exe- 
cution of  a  deed  to  certain  premises,  but  whose  judgment  was  obtained  after- 
wards, does  not  stand  on  the  footing  of  a  bona  fide  purchaser  without  notice, 
within  the  rule  protecting  such  purchasers  against  the  reformation  of  deeds 
on  the  ground  of  mistake.  Lowe  v.  Allen,  68  Ga.  225. 

*  Adams  v.  Stevens,  49  Me.  362 ;  Freeman's  Bank  v.  Vose,  23  Me.  98.  Gale 
v.  Morris,  29  N.  J.  Eq.  222.  Preston  v.  Williams,  81  111.  176.  De  Jarnatt  v. 
Cooper,  59  Cal.  703.  Holabird  v.  Burr,  17  Conn.  556.  Haynes  v.  Seachrist, 
13  Iowa,  445.  In  Fenwick  v.  Buff,  1  McArth.  (D.  C.)  107,  an  erroneous 
description  in  a  deed  was  corrected,  not  only  as  against  the  grantor,  but  as 
against  one  holding  under  a  prior  deed,  who  had  failed  to  record  such  deed 
before  the  record  of  the  deed  containing  the  erroneous  description..  Such  a 
person  does  not  stand  on  the  footing  of  a  subsequent  purchaser  with- 
out notice.  It  has  been  held  that  a  court  of  equity  will  not,  as  against  a 
subsequent  purchaser,  set  up  or  reform  a  deed  absolutely  void  for  want  of  due 
execution  by  the  grantor,  even  though  such  purchaser  took  with  notice  of  the 
void  conveyance.  Goodman  v.  Randall,  44  Conn.  321.  This  was  a  case  of 
much  hardship.  Hubbard  executed  to  Allen  a  paper  purporting  to  be  a  mort- 
gage, but  invalid  as  such  because  not  signed  by  the  grantor.  At  the  same 
time  Hubbard  conveyed  the  premises  to  Parker,  subject  to  this  mortgage,  the 
deed  reciting  that  Parker  assumed  the  payment  of  the  mortgage.  The  court 
refused  to  reform  the  mortgage  and  enforce  it  against  Parker  and  his  as- 
signees, who  had  also  accepted  conveyances  containing  an  assumption  of  the 
mortgage.  It  was  intimated,  however,  that  Allen  had  his  remedy  on  the 
promise  to  pay  contained  in  the  several  conveyances.  It  is  believed  that  this 


REFORMATION    OF    THE    CONVEYANCE.  575 

on  inquiry.92  But  if  the  mistake  be  of  a  kind  that  appears  upon 
the  face  of  the  deed,  or  if  the  deed  contain  enough  to  show  what 
land  was  really  intended  to  be  conveyed,  no  reason  is  perceived 
why  such  a  deed  would  not  be  sufficient  to  charge  the  purchaser 
with  notice  by  putting  him  on  inquiry.93  A  bill  to  reform  a  deed 
as  against  a  subsequent  purchaser  will  be  demurable  unless  it 
avers  that  the  defendant  purchased  with  notice  of  the  mistake.94 
And  such  a  purchaser  will  not  be  protected  unless  he  paid  a  valu- 
able consideration ;  a  deed  will  be  reformed  against  one  who  took 
a  mortgage  on  the  premises  to  secure  a  past  due  and  antecedent 
debt,  without  regard  to  the  question  of  notice.95 

§  232.  Volunteers.  A  court  of  equity  will  not  decree  specific 
performance  of  a  voluntary  contract  to  convey  lands.  For  the 
same  reason,  it  will  not  interfere  to  correct  a  mistake  in  a  volun- 
tary conveyance  of  lands.  Where  such  a  deed  fails  to  take  effect, 
the  title  remains  in  the  grantor,  and  he  may  make  what  disposi- 
tion of  the  premises  he  chooses.96  Therefore,  the  court  has  refused 
to  insert  in  a  voluntary  deed  the  word  "  heirs,"  necessary  to  create 
an  estate  of  inheritance,  and  omitted  by  mistake  of  the  drafts- 
man.97 But  this  rule  does  not  apply  where  the  controversy  is 
between  those  claiming  under  the  deed,  the  grantor  standing  in- 
different.98 Nor  where  the  grantee  has  taken  possession,  made 

decision  is  open  to  much  doubt.  In  Bullock  v.  Whipp,  15  R.  I.  195 ;  2  Atl. 
Rep.  309,  a  mortgage,  void  for  want  of  a  seal  was  reformed  as  against  a 
subsequent  attaching  creditor  of  the  mortgagor.  See,  also,  Lebanon  Sav. 
Bank  v.  Hollenbeck,  29  Minn.  322;  13  N.  W.  Rep.  145. 

**  Pena  v.  Armstrong,  95  Ind.  191,  the  court  saying:  "  If  this  mortgage  con- 
tained no  description  of  these  premises  it  could  not  be  reformed  and  fore- 
closed against  an  innocent  purchaser;  but  it  does  contain  a  description,  and 
this  description,  though  defective,  was  sufficient  to  put  the  purchaser  on 
inquiry,  and  thus  to  charge  him  with  notice  of  the  extent  of  the  premises 
intended  to  be  embraced  in  the  mortgage,"  citing  Wade  Notice,  §  319.  Mc- 
Aleer  v.  McMullen,  2  Pa.  St.  32.  Parker  v.  Teas,  72  Ind.  235.  See,  also, 
Cass  County  v.  Oldham,  75  Mo.  50. 

"Dayton  v.  Citizens'  Nat.  Bank,  11  III.  App.  501. 

•*  Davis  v.  Rogers,  33  Me.  522. 

*  First  Nat.  Bank  v.  Wentworth,  28  Kans.  183. 

H2  Story  Eq.  Jur.  §  793;  Adams  Eq.  (5th  Am.  ed.)  342  (169),  note.  Pros- 
ton  v.  Williams,  81  111.  176.  Else  v.  Kennedy,  67  Iowa,  376;  25  N.  W.  Rep. 
290.  Dickinson  v.  Glenney,  27  Conn.  104.  Froman  v.  Froman,  13  Ind.  317. 
Eaton  v.  Eaton,  15  Wis.  259;  Smith  v.  Wood,  12  Wis.  382.  Dupre  v.  Thomp- 
son, 4  Barb.  (N.  Y.')  279. 

•'Powell  v.  Morrispey,  98  N.  C.  426;  4  S.  E.  Rfp.  185. 

MAdair  v.  McDonald,  42  Ga.  506. 


576  MARKETABLE    TITLE    TO    BEAL   ESTATE. 

valuable  improvements  and  executed  a  mortgage  on  the  premises, 
and  the  application  for  correction  of  the  deed  is  made  by  the 
mortgagee."  Deeds  made  in  consideration  of  "  services  rendered 
and  love  and  affection  m  and  "  in  consideration  ,of  one  dollar  and 
natural  love  and  affection"2  have  been  held  not  voluntary  within 
the  rule  denying  the  reformation  of  voluntary  conveyances.  A 
voluntary  deed  may,  of  course,  be  reformed  at  the  suit  of  the 
grantor  in  a  case  of  mistake.3 

§  233.  Married  women.  A  court  of  equity  will  not  reform  the 
deed  of  a  married  woman  when  the  mistake  complained  of  con- 
sists in  the  omission  of  some  statutory  requisite,4  for  that  were  in 
effect  to  decree  specific  performance  against  a  married  woman, 
and  to  make  valid  that  which  the  statute  declares  shall  be  invalid. 
This  is  one  of  the  principal  applications  of  the  rule  that  equity 
will  not  aid  the  defective  execution  of  a  statutory  power.5  But  a 
mistake  in  a  mere  matter  of  description  in  a  married  woman's 
deed  may  always  be  reformed,6  and  confessed  clerical  errors 
therein  will  be  corrected.7  And  mistakes  of  every  kind  in  her  deed 
will  be  corrected  in  those  States  in  which  statutes  exist,  placing 
the  contracts  of  married  women  upon  the  same  footing  as  contracts 
of  femmes  sole.8  In  California,  under  a  statute  allowing  the 
amendment  of  defective  certificates  of  acknowledgment,  the  court 
permitted  a  defective  certificate  cf  acknowledgment  by  a  married 
woman  to  be  reformed.9 

"Cummings  v.  Freer,  26  Mich.  128. 

'Baker  v.  Pyatt,  108  Ind.  61;  9  N.  E.  Rep.  112. 

*  Mason  v.  Moulder,  58  Ind.  1.  But  see  Powell  v.  Morrissey,  98  N.  C.  426; 
4  S.  E.  Rep.  185. 

8  Mitchell  v.  Mitchell,  40  Ga.  11;  Crockett  v.  Crockett,  73  Ga.  647. 

4  Martin  v.  Dwelly,  6  Wend.  (N.  Y.)  9;  21  Am.  Dec.  245.  Dickinson  v. 
Glenney,  27  Conn.  104.  Holland  v.  Moon,  39  Ark.  120.  Grapengether  v. 
Ferjervary,  9  Iowa,  163;  74  Am.  Dec.  336.  Hamar  v.  Medskar,  60  Ind.  413. 

"Williams  v.  Cudd,  26  So.  Car.  213;  2  S.  E.  Rep.  14. 

'Gardner  v.  Moore,  75  Ala.  394;  51  Am.  Rep.  454.  Carper  v.  Munger,  62 
Ind.  481;  Wilson  v.  Stewart,  63  Ind.  294;  Styes  v.  Robbins,  76  Ind.  547; 
Jones  v.  Sweet,  77  Ind.  187;  Hewitt  v.  Powers,  84  Ind.  295. 

T  Savings  &  Loan  Assn.  v.  Meeks,  66  Cal.  371;  5  Pac.  Rep.  624. 

•Bradshaw  v.  Atkins,  110  111.  323.  Christman  v.  Colbert,  33  Minn.  509;  24 
N.  W.  Rep.  301. 

•Hutchinson  v.  Ainsworth,  63  Cal.  286.  Without  the  aid  of  a  statute,  de- 
fects in  a  certificate  of  acknowledgment,  whether  of  a  married  woman  or  any 
other  person,  cannot  be  supplied.  Ante,  §  41. 


BOOK   H. 

OF  REMEDIES  IN  DISAFFIRMANCE  OR  RESCISSION  OF  THE  CON- 
TRACT OF  SALE. 


CHAPTER  XXIII. 

OF  RESCISSION  BY  ACT  OF  THE  PARTIES. 

GENERAL  PRINCIPLES.     §  234. 
RESCISSION  BY  ONE  PARTY  ONLY.     §  235. 
STATUTE  OF  FRAUDS.     §  236. 

§  234.  GENERAL  PRINCIPLES.  We  have  already  seen  that 
upon  the  discovery  of  a  defect  in  the  title  to  real  estate  the  steps  to 
be  taken  by  the  purchaser  depend  upon  the  stage  that  the  transac- 
tion has  reached,  upon  the  express  agreements,  if  any,  which  the 
parties  have  entered  into  respecting  the  property,  upon  those  which 
the  law  implies  from  their  acts  and  conduct,  and  from  the  transac- 
tion itself,  and  upon  the  nature  of  the  defect  in  respect  of  which 
relief  is  claimed.  In  some  instances  the  purchaser,  because  of  the 
defect,  may  rescind  and  abandon  the  contract,  or  affirm  it  and 
demand  to  be  compensated  in  damages  for  the  breach ;  in  some  he 
may  seek  his  remedy  in  a  court  of  law,  or  in  a  court  of  equity,  at 
his  election,  while  in  others  no  such  right  of  election  exists,  and  he 
must  proceed  in  the  one  court  or  the  other,  according  to  the  nature 
of  his  case.  But  whatever  course  he  may  take  amounts  of  necessity 
either  to  a  rescission  or  an  affirmance  of  the  contract ;  and,  as  these 
diametrically  opposite  attitudes  of  the  purchaser  in  respect  to  the 
contract  constitute  the  most  natural  and  convenient  subdivision 
under  which  the  rights  of  purchasers  of  defective  titles  to  real 
estate  may  be  considered,  they  have  been  adopted  as  main  features 
in  the  analysis  and  classification  of  this  work.  The  foregoing 
pages  having  been  devoted  to  the  examination  of  remedies  in  af- 
firmance of  the  contract,  and  their  incidents,  we  pass  now  to  the 
consideration  of  those  in  which  the  purchaser  elects  to  disaffirm, 
abandon  or  rescind  the  contract. 

sr 


578  MARKETABLE    TITLE    TO    REAL   ESTATE. 

Rescission  is  the  abrogation  or  annulment  of  a  contract.1  The 
most  common  legal  use  of  the  term  is  to  designate  the  jurisdiction 
which  equity  assumes  in  the  cancellation  of  contracts ;  but  rescission 
may,  of  course,  be  accomplished  by  act  of  the  parties  without  resort 
to  judicial  proceedings.  The  parties  may,  at  any  time  before  con- 
veyance, rescind  the  contract  by  consent,2  which  consent  may  be  ex- 
press or  implied  from  the  acquiescence  of  the  one  party  in  the  acts 
of  the  other.  But,  in  order  to  bind  the  one  party  by  his  presumed 
acquiescence  in  the  acts  of  the  other,  it  must  clearly  appear  that  he 
had  notice  of  the  intent  of  the  other  to  rescind,3  or  knowledge  of 
such  acts  on  the  part  of  the  latter  as  constituted  in  themselves  a 
rescission.4  The  proper  course  to  be  pursued  by  the  party  intend- 
ing to  rescind  is  to  notify  the  other  party  of  that  intent.5  This 
form  of  relief  is  one  to  which  the  parties,  acting  in  good  faith,  not 
infrequently  resort,  the  purchaser  agreeing  to  give  up  the  premises 
and  the  vendor  returning  the  purchase  money.  If,  upon  a  rescis- 
sion of  the  contract  by  consent,  the  vendor  fail  to  return  the  pur- 

1  The  several  ways  in  which  the  rescission  of  an  executory  contract  may 
occur  have  been  thus  summarized  by  Mr.  Fry  in  his  treatise  on  Specific  Per- 
formance, §  998 :  "  ( 1 )  A  simple  agreement  between  the  parties  to  rescind  the 
contract.  (2)  An  agreement  between  the  parties  to  new  terms,  which  put  an 
end  to  the  terms  of  the  old  contract.  (3)  An  agreement  between  the  original 
parties  and  a  third  person  by  which  the  third  person  takes  the  place  of  one 
of  the  original  contractors.  (4)  An  exercise  of  a  power  to  rescind  reserved 
by  the  contract  to  one  or  both  of  the  contractors.  (5)  An  exercise  of  the 
right  to  rescind  which  results  to  the  injured  party  from  fraud  or  mistake  in 
relation  to  the  contract.  (6)  An  exercise  of  the  right  to  rescind  which 
results  to  one  party  from  the  other  party's  absolute  refusal  to  perform  the 
contract  or  unreasonable  delay  in  its  performance.  (7)  An  exercise  of  the 
right  to  rescind  which  results  to  one  party  from  the  other  party's  having 
made  performance  impossible." 

'Fry  Specific  Perf.  §  998;  2  Warvelle  Vend.  834,  947.  Boyce  v.  McCul- 
lough,  3  Watts  &  S.  (Pa.)  429;  Lauer  v.  Lee,  42  Pa.  St.  165. 

1 A  parol  agreement  discharging  the  vendee  from  his  contract  as  to  part 
of  the  land  on  account  of  defective  title  is  a  good  defense  to  an  action  for  the 
purchase  money,  pro  tanto.  Hussey  v.  Roquemore,  27  Ala.  281.  Carney  v. 
Newbeary,  24  111.  203.  Alexander  v.  Utley,  7  Ired.  Eq.  (N.  C.)  242. 

4  2  Warvelle  Vend.  883. 

•1  Sugd.  Vend.  (14th  Am.  ed.)  370  (243).  Reynolds  v.  Nelson,  6  Madd. 
18.  Alexander  v.  Utley,  7  Ired.  Eq.  (N.  C.)  242;  McDowell  v.  McKesson,  6 
Ired.  Eq.  (N.  C.)  278.  Where  vendor  and  vendee  are  both  endeavoring  to 
clear  up  a  defect  in  the  title,  neither  has  a  right  to  rescind  or  consider  his 
obligation  to  the  other  determined  without  reasonable  notice.  Lyons  v. 
Pyatt,  (N.  J.  Eq.)  26  Atl.  Rep.  33. 


OF    RESCISSION    BY    ACT   OF   THE   PARTIES.  579 

chase  money,  the  vendee  may  recover  it  back ;  the  law  implies  an 
agreement  on  the  part  of  the  vendor  to  repay.6  And  where  the  con- 
tract is  rescinded  by  the  acts  of  both  parties,  the  purchaser  may  re- 
cover back  what  he  has  paid,  though  the  contract  provides  that  upon 
default  in  the  payment  of  the  purchase  money  the  purchaser  shall 
forfeit  such  payments  as  he  may  have  made.7 

The  contract  of  sale  frequently  provides  that  the  purchaser  shall 
pay  the  purchase  money  within  a  certain  time,  and  receive  a  clear 
title,  and  in  default  of  payment  in  full  at  that  time,  shall  forfeit 
so  much  of  the  purchase  money  as  may  have  been  paid.  Where 
such  a  provision  exists,  the  forfeiture  cannot  occur  so  long  as  the 
vendor  has  not  a  good  title.8 

§  235.  RESCISSION  BY  THE  ACT  OF  ONE  PABTY  ONLY.  Any 
act  by  which  either  party  clearly  manifests  that  he  has  abandoned 
the  contract,  is  as  to  him  a  rescission;  as  where  the  purchaser 
seeks,  by  judicial  proceedings,  to  recover  back  the  purchase  money 
which  he  has  paid,9  or  where  the  vendor,  in  default  of  payment  of 
the  purchase  money,  resells  the  premises  to  a  stranger,10  or  where 
he  declares  the  contract  rescinded  on  account  of  his  inability  to 
furnish  a  good  title,  or  a  good  merchantable  abstract.11  Of  course 
one  party  to  a  contract  cannot,  of  his  own  motion,  deprive  the  other 
of  his  right  to  enforce  the  contract  by  declaring  that  he  will  pro- 
ceed no  further  in  the  matter.  But  if  the  act  of  one  party  be  such 
as  must  of  necessity  prevent  the  other  party  from  fulfilling  the 
contract,  as  where  the  vendor  disables  himself  from  performance 
on  his  part  by  conveying  away  the  premises,  the  other  party  may 
treat  the  contract  as  rescinded.12 

A  contract  can  be  rescinded  in  pais  of  course  only  by  consent  of 
all  the  contracting  parties.  But  such  consent  need  not  be  expressed 

•  Beaman  v.  Simmons,  76  N.  Y.  43. 

'Shively  v.  Land  Co.,  (Cal.)  33  Pac.  Rep.  848,  citing  several  California 
decisions. 

•Getty  v.  Peters,  82  Mich.  661;  46  N.  W.  Rep.  1036;  Converse  v.  Blumrich, 
14  Mich.  109;  90  Am.  Dec.  230. 

•1  Sugd.  Vend.  (8th  Am.  ed.)  537  (358).  Refusal  to  execute  a  conveyance 
is  a  rescission  by  the  vendor.  2  Sugd.  Vend.  (8th  Am.  ed.)  212  (562). 

'•Ketchum  v.  Everson,  13  Johns.   (N.  Y.)   359;  7  Am.  Dec.  384. 

"Elder  v.  Chapman,  176  111.  143;  52  N.  E.  Rep.  10. 

"Chitty  Cont.   (10th  Am.  ed.)   812;  et  seq. 


580  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

in  words ;  it  may  be  implied  from  the  acts  and  conduct  of  the  other 
party.  If  one  party  announces  his  intention  to  rescind  and  the 
other  does  not  object ;  or  if  one  party  fails  to  perform  or  disables 
himself  from  performing  on  his  part,  the  other  party  may  treat  the 
contract  as  rescinded.13  A  subsequent  conveyance  of  the  premises 
by  the  vendor,  after  the  purchaser  has  defaulted  in  the  payment  of 
the  purchase  money,  is  not  necessarily  a  rescission  of  the  contract. 
The  vendor  may  assign  his  contract  to  a  third  person,  and  the  con- 
veyance to  the  assignee  may  be  made  for  the  purpose  of  enabling 
him  to  tender  performance  to  the  purchaser.14  A  rescission  of  the 
contract  by  act  of  the  parties,  must  be  concurred  in  by  both  parties, 
and  must  affect  all  parties  previously  bound. 

When  it  is  said  that  one  party  cannot  rescind  the  contract,  with- 
out the  consent  of  the  other,  it  is  not  meant  that  he  cannot  himself 
abandon  the  contract  if  he  conceives  that  he  has  a  right  so  to  do, 
hut  that  he  cannot  by  so  doing  deprive  the  other  party  of  his  right 
to  enforce  the  contract.  Thus,  if  the  vendor  attempt  to  rescind  by 
conveying  the  premises  to  a  stranger,  he  cannot  thereby  affect  the 
right  of  the  other  party  to  affirm  the  contract  by  action  for  dam- 
ages, and  though  the  vendee  may  elect  to  rescind  by  abandoning 
the  possession  and  refusing  to  pay  the  purchase  money,  the  right  of 
the  vendor  to  affirm  the  contract  by  demanding  specific  performance 
in  equity,  or  damages  at  law,  remains  unimpaired.  If  the  pur- 

M  Parsons  Cont.  677.  Lewis  v.  White,  16  Ohio  St.  444.  In  Trevino  r. 
Cantu,  61  Tex.  88,  it  appeared  that  upon  the  execution  of  a  deed  with  general 
warranty,  the  parties  executed  at  the  same  time  another  instrument  providing 
that  if  the  title  should  fail,  the  purchaser,  who  had  taken  possession  under 
the  deed,  should  not  recover  more  than  $2,000  which  was  the  price  paid.  It 
was  held  that  the  vendor  could  not  by  afterwards  confessing  that  the  title 
was  defective  compel  the  purchaser  in  a  suit  for  rescission  to  accept  the 
$2,000;  that  the  purchaser  had  a  right  to  retain  possession  and  resist  an 
adverse  claim;  and  in  case  of  eviction,  recover  according  to  the  terms  of  his 
contract;  and  that  he  had  a  right  to  buy  out  the  adverse  claimant  if  he  de- 
sired to  do  so,  and  to  every  other  advantage  resulting  from  possession,  the 
court  saying  that  to  allow  a  rescission  in  opposition  to  the  wishes  of  the 
vendee  on  a  mere  confession  of  the  invalidity  of  the  title  would  be  to  place 
the  purchaser  at  the  mercy  of  the  seller,  since  in  all  instances  in  which  the 
land  had  appreciated  in  value,  the  seller  could  confess  invalidity  of  the  title, 
recover  the  land  and  speculate  upon  the  advance  in  the  value  of  the  property. 

"Davidson  v.  Keep,  61  Iowa,  218;  16  N.  W.  Rep.  101.  Compare  Dotson  v. 
Bailey,  76  Ind.  434. 


OF    RESCISSION    BY    ACT    OF    THE    PARTIES.  581 

chaser  elect  to  treat  the  contract  as  rescinded,  his  election  must  be 
evidenced  by  acts  as  well  as  words,  that  is  to  say,  that  he  must  give 
up  whatever  he  has  received  under  the  contract,  and  cannot  avoid 
its  obligation  by  merely  declaring  that  he  will  proceed  no  further 
in  the  business.15 

§  236.  STATUTE  OF  FBATJDS.  It  has  been  decided  that  a  remis- 
sion <^f  a  contract  of  sale  of  lands  by  mutual  agreement,  being  a 
contract  relating  to  real  estate,  is  within  the  Statute  of  Frauds,1' 
and  must  be  in  writing,  but  the  weight  of  authority  is  that  a 
rescission  by  parol  is  valid.17  The  rescission,  however,  must  be 
accompanied  by  acts  leaving  no  doubt  of  the  intent.  Such  as  can- 
celling the  agreement  or  removing  from  the  premises.18  A 
learned  writer  observes  in  this  connection :  "  It  has  been  urged  that 
the  Statute  of  Frauds  precludes  parol  evidence  of  rescission  of 
contracts  relating  to  land;  for  a  contract  to  waive  a  purchase  of 
land  as  much  relates  to  land  as  the  original  contract.  But  it  is 
replied  that  the  rescinded  contract  is  not  the  contract  on  which  the 
action  is  brought,  and  that  while  the  statute  provides  that  no  action 
shall  be  brought  on  any  contract  of  the  description  there  specified, 
except  it  be  in  writing,  it  does  not  provide  that  every  such  written 
contract  shall  support  an  action.  In  the  result  it  is  perfectly  well 
ascertained  that  a  contract  in  writing,  and  by  law  required  to  be 
in  writing,  may  in  equity  be  rescinded  by  parol,  and  waiver  by 
mutual  parol  agreement,  therefore,  furnishes  a  sufficient  defense 
to  an  action  for  specific  performance."  19 

"Lewis  v.  McMillen,  41  Barb.  (N.  Y.)  420.  Bryce  v.  McCulloch,  3  Watts 
&  Serg.  (Pa.)  429. 

"Dial  v.  Grain,  10  Tex.  444. 

"2  Warvelle  Vend.  834;  Fry  Specific  Perf.  §  1000.  Boyce  v.  McCulloch,  3 
Watts  &  Serg.  (Pa.)  429;  Goucher  v.  Martin,  9  Watts  (Pa.),  106.  In  Gunby 
v.  Sluter,  44  Md.  237,  the  question  whether  a  parol  agreement  to  rescind  a 
contract  for  the  sale  of  lands  is  within  the  Statute  of  Frauds,  was  raised 
but  not  decided.  The  court  referred  to  Buckhouse  v.  Crossby,  2  Eq.  Cas.  Ab. 
34,  pi.  44;  Goss  v.  Ld.  Nisgent,  5  B.  &  Ad.  58;  Sugden  V.  &  P.  167,  168; 
Addison  Cont.  97;  2  Taylor  Ev.  §  1905;  Benjamin  Sales,  159;  Browne  Stat. 
Frauds,  §§  429-436. 

"Lauer  v.  Lee,  42  Pa.  St.  165.  See,  also,  Fry  Spec.  Perf.  (3d  Am.  ed.) 
1004,  and  note  1,  p.  604. 

"Fry  Spec.  Perf.  (3d  Am.  ed.)  §  1002;  citing  Gonian  v.  Salisbury,  1  Vern. 
240;  Inge  v.  Lippingwell,  2  Dick.  469;  Davis  v.  Symonds,  1  Cox,  402;  Bobin- 
Bon  v.  Page,  3  RUBS.  114. 


OF  VIRTUAL  RESCISSION  OF  THE  CONTRACT  BY  PROCEEDINGS  AT 
LAW. 

OF  PROCEEDINGS  AT  LAW  WHERE  THE  CONTRACT  is  EXECUTORY. 
CHAPTEK  XXIV. 

OF    THE  RIGHT  TO   RECOVER   BACK   OR   DETAIN   THE  PURCHASE 
MONEY  ON  FAILURE  OF  THE  TITLE. 

GENERAL  PRINCIPLES.     §  237. 

RESTITUTION  OF  THE  PURCHASE  MONEY.     §  238. 

WHAT  ACTION  PURCHASER  SHOULD  BRING.     §   239. 

DETENTION  OF  THE  PURCHASE  MONEY.     §  240. 

EXCEPTIONS  AND  QUALIFICATIONS.     §  241. 

WHAT  OBJECTIONS  TO  TITLE  MAY  BE  MADE.     §  242. 

EXPENSES  OF  EXAMINING  THE  TITLE.     §  243. 

BURDEN  OF  PROOF.     MISCELLANEOUS  RULES.     §  244. 

RIGHT    TO    RESCIND    WHERE    THE    ESTATE    IS    INCUMBERED. 

§  245. 
BUYING    WITH   KNOWLEDGE    OF   DEFECT    OR   INCUMBRANCE. 

§   246. 

CHANCING  BARGAIN'S.     §  247. 
EFECT  OF  ACCEPTING  TITLE  BOND.     §  248. 

INQUIRY  INTO  CONSIDERATION  OF  SEALED  INSTRUMENT.  §  249. 
RIGHT  TO  ENJOIN  COLLECTION  OF  PURCHASE  MONEY.     §  250. 
RIGHTS  AGAINST  TRANSFEREE   OF   PURCHASE-MONEY  NOTE. 

§  251. 

REFUSAL  OF  VENDOR  TO  CONVEY  FOR  WANT  OF  TITLE.    §  252. 
TENDER  OF  PURCHASE  MONEY  AND  DEMAND  OF  DEED.    §  253. 
OFFER  TO  RESCIND.     §  254. 
PLEADINGS.     §  255. 

§  237.  GENERAL  PRINCIPLES.  Strictly  speaking  there  is  at 
law  no  such  thing  as  a  technical  rescission  of  a  contract  for  the  sale 
of  lands,  for  a  court  of  law  has  no  power  to  decree  the  surrender 
and  cancellation  of  the  contract,  and  the  restitution  of  whatever 
either  party  has  received  in  partial  performance  thereof.  These 
are  matters  particularly  within  the  province  of  a  court  of  equity. 
But  a  virtual  rescission  of  the  contract  is  accomplished  at  law  by 


BECOVEB  OE  DETAIN  PUECHASE  MONEY  ON  FAILUEE  OF  TITLE.       583 

allowing  the  purchaser,  in  case  the  title  fails,  to  recover  back  so 
much  of  the  purchase  money  as  he  may  have  paid,1  or  to  detain 
that  which  remains  unpaid,  upon  condition  in  either  case  that  he 
restore  the  premises  to  the  vendor,  and  place  him  substantially  in 
the  same  condition  in  which  he  was  before  the  contract  was  made. 

The  right  to  rescind  an  executory  contract  for  the  sale  of  land  is 
perhaps  more  frequently  exercised  by  proceedings  of  this  kind, 
than  in  any  other  mode.  Of  this  nature  is  the  common  action  to 
recover  back  the  deposit  made  at  the  time  of  the  purchase,  subject 
to  the  right  of  the  purchaser  to  examine  the  title.  It  is  to  be 
borne  in  mind,  however,  that  the  right  of  the  purchaser  to  recover 
back  or  to  detain  the  purchase  money  where  the  title  is  found  to  be 
defective,  is  subject  to  the  vendor's  right  to  perfect  the  title  in  all 
cases  in  which  time  is  not  material.2 

The  right  of  the  purchaser  to  detain  or  to  recover  back  the  pur- 
chase money  depends  mainly  upon  the  following  considerations, 
namely :  Whether  the  contract  has  been  executed  by  a  conveyance 
to  the  purchaser ;  whether  that  conveyance  contains  covenants  for 
title;  and  whether  the  purchaser  or  grantee  is  in  the  undisturbed 
possession  and  enjoyment  of  the  premises.  The  right  to  relief  in 
case  of  fraud  by  the  vendor  in  respect  to  the  title  is  usually  en- 
forced in  equity,  though  an  action  at  law  may  be  maintained  to 
recover  damages  for  the  deceit.  There  have  been  few  more  fruit- 
ful sources  of  litigation  in  the  United  States  than  disputes  between 
vendors  and  purchasers  of  lands  in  respect  to  the  sufficiency  of  title. 
The  vast  number  of  cases  to  be  found  in  this  field  are  to  be  at- 

1  Brown  v.  Witter,  10  Ohio,  144.  No  argument  is  needed  to  show  that  an 
executory  contract  for  the  sale  of  lands  is  practically  rescinded  by  proceed- 
ings at  law  wfien  the  purchaser  recovers  back  his  purchase  money.  "  A  court 
of  equity,"  says  a  learned  writer,  "  entertains  a  suit  for  the  express  purpose 
of  procuring  a  contract  or  a  conveyance  to  be  canceled,  and  renders  a  decree 
conferring  in  terms  that  exact  relief.  A  court  of  law  entertains  an  action  for 
the  recovery  of  the  possession  of  chattels,  or  under  some  circumstances  for 
the  recovery  of  land,  or  for  the  recovery  of  damages,  and  although  nothing 
is  said  concerning  it,  either  in  the  pleadings  or  in  the  judgment,  a  contract 
or  a  conveyance,  as  the  case  may  be,  is  virtually  rescinded;  the  recovery  is 
based  upon  the  fact  of  such  rescission,  and  could  not  have  been  granted  unless 
the  rescission  had  taken  place.  The  remedy  of  cancellation  is  not  expressly 
asked  for,  nor  granted  by  the  court  of  law,  but  all  its  effects  are  indirectly  ob- 
tained in  the  legal  action."  1  Pomeroy  Eq.  Jur.  §  110. 

'Post,  ch.  32. 


584  MARKETABLE    TITLE    TO    REAL    ESTATE. 

tributed  principally  to  the  carelessness  and  indifference  of  pur- 
chasers in  omitting  an  examination  of  the  title  before  completing 
the  contract;  to  their  desire  to  escape  from  injudicious  and  un- 
profitable bargains ;  and  to  the  fraud  of  the  vendor  in  palming  off 
a  bad  title  upon  a  credulous,  inexperienced  or  ignorant  purchaser. 
The  circumstances  under  which  the  purchaser  may  maintain  an 
action  to  recover  back  his  purchase  money  while  the  contract  is 
executory  have  been  thus  classified  in  an  American  case:3  (1) 
Where  the  recission  is  voluntary,  and  with  mutual  consent  of  the 
parties,  and  without  default  on  either  side;  (2)  Where  the  vendor 
cannot  or  will  not  perform  the  contract  on  his  part ;  (3)  Where  the 
vendor  has  been  guilty  of  fraud  in  making  the  contract  ;4  (4) 
Where  by  the  terms  of  the  contract,  it  is  left  in  the  purchaser's 
power  to  rescind  it  by  any  act  on  his  part,  and  he  does  it;5  (5) 
Where  neither  party  is  ready  to  complete  the  contract  at  the  stipu- 
lated time,  but  each  is  in  default.6  Of  these  cases  the  last  two 
appear  to  be  included  in  the  first  three ;  of  those  three  rescission 
by  consent  of  both  parties,  and  rescission  in  cases  of  fraud,  are  else- 
where considered  in  this  work.7  We  have,  therefore,  to  do  now 
only  with  cases  in  which  the  vendor  cannot,  for  want  of  title,  per- 
form the  contract  on  his  part.  The  state  of  American  law  respect- 
ing the  right  of  the  purchaser  to  detain  or  to  recover  back  the 
purchase  money  on  failure  of  the  title,  can  best  be  presented,  it  is 
believed,  in  a  series  of  general  propositions.  Some  of  these  are 
necessarily  qualifications  or  restrictions  of  the  others ;  consequently 
the  reader,  before  quitting  the  subject,  should  glance  over  the 
entire  series.  Those  propositions  may  be  thus  stated : 

I.  A  purchaser  of  land  may,  so  long  as  the  contract  remains 
unexecuted  by  a  conveyance,  as  a  general  rule,  recover  back  or 

8  Baston  v.  Clifford,  68  HI.  67;  18  Am.  Rep.  547;  Bryson  v.  Crawford,  68 
111.  362. 

4  Baston  v.  Clifford,  69-  111.  67.  Citing  Smith  v.  Lamb,  26  111.  396;  79  Am. 
Dec.  381;  Bannister  v.  Read,  1  Gilm.  (111.)  99;  Battle  v.  Rochester  City 
Bank,  5  Barb.  (N.  Y.)  414.  1  Chit.  PI.  355. 

'Baston  v.  Clifford,  68  111.  67.  Citing  Towns  v.  Barrett,  1  Term  R.  133. 
Gillett  v.  Maynard,  5  Johns.  (N.  Y.)  85;  4  Am.  Dec.  329;  1  Chit.  PI.  356. 

•Baston  v.  Clifford,  68  111.  67.  Citing  1  Chit.  PI.  355;  Chit,  on  Contract 
(5th  Am.  ed.),  632. 

7  Ante,  ch.  23 ;  post,  chs.  29  and  35. 


RECOVER  OK  DETAIN  PURCHASE  MONEY  ON  FAILURE  OF  TITLE.       585 

detain  the  purchase  money,  if  the  title  of  the  vendor  be  not  such  as 
the  purchaser  is,  under  the  contract,  entitled  to  require.8 

II.  A  purchaser  of  lands  in  undisturbed  possession  cannot,  as  a 
general  rule,  while  the  contract  is  executory,  recover  back  the  pur- 
chase money  on  failure  of  the  title,  or  resist  the  payment  thereof, 
without  restoring  the  premises  to  the  vendor  and  placing  him  in 
statu  quo.9 

III.  If  the  contract  has  been  executed  by  a  conveyance  of  the 
land  to  the  purchaser  without  general  covenants  for  title,  he  can, 
if  the  title  fails,  neither  recover  back  the  purchase  money  nor 
detain  that  which  remains  unpaid,  either  at  law  or  in  equity,  unless 
the  vendor  was  guilty  of  fraud,  or  the  contract  was  founded  in 
mistake  of   the   parties   as   to   some   fact   upon  which   the  title 
depended.10 

IV.  If  the  contract  has  been  executed  by  the  delivery  and  accept- 
ance of  a  conveyance  containing  a  covenant  of  warranty,  or  for 
quiet  enjoyment,  or  against  incumbrances,  and  there  has  been  such 
a  breach  of  those  covenants  as  would  give  the  grantee  a  present 
right  to  recover  substantial  damages  against  the  grantor,  the  former 
will,  in  an  action  against  him  for  the  purchase  money,  be  allowed 
to  set  up  such  a  breach  as  a  defense  by  way  of  recoupment  of  the 
plaintiff's  demand.     If  there  has  been  no  such  breach  the  grantee 
cannot  detain  the  purchase  money.11 

V.  If  the  contract  has  been  executed  by  a  conveyance  with  a 
covenant  of  seisin  or  of  good  right  to  convey,  and  it  clearly  appears 
that  the  covenantor  had  no  title,  the  covenantee,  though  he  has  not 
been  disturbed  in  the  possession,  will,  it  seems,  in  some  of  the 
American  States,  be  permitted  to  set  up  the  breach  of  the  covenant 
of  seisin  as  a  defense  to  an  action  for  the  purchase  money,  upon 
condition  that  he  convey  the  premises  to  the  covenantor,  and  do  all 
that  may  be  necessary  to  put  him  in  statu  quo.™ 

VI.  After  a  contract  for  the  sale  of  lands  has  been  executed  by 
a  conveyance  with  covenants  for  title,  the  purchaser  cannot,  though 

*  This  chapter. 

•  Post,  ch.  25. 
M  Post,  ch.  27. 
11  Ante,  ch.  16. 
1J  Post,  ch.  26. 


586  MARKETABLE    TITLE    TO    REAL   ESTATE. 

he  has  been  evicted  by  one  claiming  under  a  paramount  title,  or 
though  he  has  discharged  an  incumbrance  upon  the  estate,  recover 
back  the  purchase  money  eo  nomine,  either  by  suit  in  equity,  or 
by  action  against  the  vendor  for  money  had  and  received  to  the 
plaintiff's  use.  His  remedy  is  upon  the  covenants  for  title.13 

VII.  If  the  vendor  fraudulently  induced  the  purchaser  to  accept 
a  bad  title  the  latter  may  at  law  recover  back  or  detain  the  pur- 
chase money  as  damages,  whether  the  contract  is  executory,  or  has 
been  executed;  and  if  executed,  whether  the  conveyance  was 
with  or  without  covenants  for  title ;  and  if  with  covenants  for  title, 
whether  those  covenants  have  or  have  not  been  broken.14 

PBOPOSITION  I. 

A  purchaser  of  lands  may,  so  long  as  the  contract  remains  un- 
executed by  a  conveyance,  as  a  general  rule,  recover  back  or  'detain 
the  purpose  money,  if  the  title  of  the  vendor  be  not  such  as  the 
purchaser  is,  under  the  contract,  entitled  to  require. 

§  238.  BIGHT  TO  BECOVEB  BACK  THE  PTTBCHASE  MONEY. 
As  to  the  right  to  recover  back  the  purchase  money,  the  rule  is 
thus  stated  by  an  eminent  authority :  "  When  a  person  sells  an  in- 
terest and  it  appears  that  the  interest  which  he  pretends  to  sell  was 
not  the  true  one,  as,  for  example,  if  it  was  for  a  less  number  of 
years  than  he  had  contracted  to  sell,  the  purchaser  may  consider 
the  contract  at  an  end  and  bring  an  action  for  money  had  and  re- 
ceived to  recover  any  sum  of  money  which  he  may  have  paid  in 
part  performance  of  the  agreement  for  sale."  The  rule  thus  stated 
has  been  frequently  recognized  in  America.15  The  purchaser  may, 

13  Post,  ch.  28. 

MPost,  ch.  29.  In  a  case  in  which  the  purchaser  deposited  the  cash  pay- 
ment with  a  stakeholder,  to  be  forfeited  on  failure  to  comply  with  the  con- 
tract, and  the  vendor  made  no  effort  to  cure  defects  pointed  out  by  the  pur- 
chaser's counsel  on  examination  of  the  title,  the  vendor  could  not  claim  a 
forfeiture  of  the  deposit.  Greenville  Nat.  Bank  v.  Parkinson,  (Tex.  Civ. 
App.)  52  S.  W.  Rep.  648.  k 

15  1  Sugd.  Vend.  ( 14th  ed. )  298.  Wherever  the  purchaser  has  a  right  to 
rescind  the  contract,  he  may  bring  an  action  for  money  had  and  received  to 
his  use.  Id.  249.  Turner  v.  Nightingale,  2  Esp.  639;  Hearn  v.  Tomlin, 
Peake  Cas.  192;  Thompson  v.  Miles,  I  Esp.  184;  Hibbert  v.  Shee,  1  Camp. 


BECOVEB  OE  DETAIN  PUECHASE  MONEY  ON  FAILUBE  OF  TITLE.       587 

of  course,  rescind  the  contract  and  recover  back  or  detain  the 
purchase  money  at  law,  in  any  case  in  which  the  vendor  fraud- 
ulently misrepresented  or  concealed  the  state  of  his  title.16  If  while 
the  contract  is  executory  the  purchaser  is  forced  to  buy  in  an  out- 
standing adverse  claim  to  the  property  in  order  to  protect  his  title, 
he  may  recover  back  from  the  vendor  or  his  estate  the  amount  ex- 
pended for  that  purpose.17 

Where  the  contract  provided  for  the  forfeiture  of  cash  payments 
made  by  the  purchaser  in  case  of  his  failure  to  pay  the  deferred 
payments  promptly,  it  was  held  competent  for  the  purchaser  to 
show  an  oral  agreement  that  such  payments  were  to  be  further 
postponed  until  the  right  of  the  vendor  to  receive  and  convey  title 
to  the  land  should  be  determined.  Such  agreement  estops  the 
vendor  from  claiming  a  forfeiture  of  the  contract  for  non-pay- 
ment while  the  question  of  his  title  is  unsettled.18 

It  has  been  held  that  the  purchaser,  in  a  case  in.  which  the  vendor 
has  been  guilty  of  fraud,  may,  where  the  purchase  money  paid  has 
been  invested  by  the  vendor  in  the  funds  or  other  property  so  that 
it  may  be  traced,  follow  it  and  impress  it  with  a  trust.19  The 
decision  has  been  criticised  by  Sir  Edward  Sugden,  who  considers 

Ca.  113;  Duffell  v.  Wilson,  1  Camp.  Ca.  401;  Greville  v.  Da  Costa,  Peake 
Add.  Cas.  113.  Guttschlick  v.  Bank,  5  Cranch  (U.  S.  C.  C.),  435.  Seibel  v. 
Purchase,  134  Fed.  Rep.  484.  Sanders  v.  Lansing,  70  Cal.  429;  11  Pac.  Rep. 
702;  Burks  v.  Davies,  85  Cal.  110;  24  Pac.  Rep.  613,  where  the  purchaser  had 
only  on  "  option  "  to  take  the  property  at  a  certain  price.  Swihart  v.  Cline, 
19  Ind.  264.  Wickliff  v.  Clay,  1  Dana  (Ky.),  585.  Fields  v.  Baum,  35  Mo. 
App.  511.  Pino  v.  Beckwith,  1  New  Mex.  19.  Force  v.  Dutcher,  18  N.  J. 
Eq.  401.  Judsori  v.  Wass,  11  Johns.  (N.  Y.)  525;  6  Am.  Dec.  392;  Putnam 
v.  Westcott,  19  Johns.  (N.  Y.)  73;  Stevens  v.  Van  Ness,  19  N.  Y.  Supp.  950; 
Wetmore  v.  Bruce,  118  N.  Y.  319;  23  N.  E.  Rep.  303.  Pipkin  v.  James,  1 
'Humph.  (Tenn.)  325;  34  Am.  Dec.  652;  Buchanan  v.  Alwell,  8  Humph. 
(Tenn.)  516;  Topp  v.  White,  12  Heisk.  (Tenn.)  165.  Mayes  v.  Blanton,  67 
Tex.  246;  House  v.  Kendall,  55  Tex.  40.  Parsons  v.  Smith,  46  W.  Va.  728; 
34  S.  E.  Rep.  922.  Burke  v.  Schreiber,  183  Mass.  35;  66  N.  E.  Rep.  411. 
Maxwell  v.  Gregory,  53  Neb.  5;  73  N.  W.  Rep.  220.  As  to  the  right  of  a 
subscriber  to  the  stock  of  a  land  company  to  recover  back  his  subscription  on 
failure  of  title  to  the  lands  forming  part  of  the  capital  stock  of  the  company, 
see  Wright  v.  Swayne,  5  B.  Mon.  (Ky.)  441. 

"Post,  chs.  29  and  35.     Inness  v.  Willis,  16  Jones  &  S.   (N.  Y.)   188. 

"Ante,  ch.  19.     Ferguson  v.  Teel,  82  Va.  690. 

"Missouri,  K.  &  T.  R.  Co.  v.  Pratt,   (Kans.)   67  Pac.  Rep.  464. 

"Small  v.  Atwood,  Yo.  407.  In  this  case,  however,  the  alleged  fraudulent 
representations  were  as  to  the  quality  of  the  estate. 


588  MARKETABLE    TITLE    TO    REAL   ESTATE. 

that  such  a  rule,  if  established,  would  lead  to  much  inconvenience.20 
The  better  opinion  seems  to  be  that  the  purchaser  cannot  follow 
the  purchase  money  and  obtain  a  lien  upon  it  to  the  exclusion  of 
creditors  of  the  vendor,  or  others  having  equal  equities  with 
himself. 

The  purchaser  may  maintain  an  action  to  recover  back  the  pur- 
chase money  without  having  made  a  previous  demand  therefor,  if 
the  vendor  is  insisting  upon  a  specific  performance  of  the  contract. 
The  general  rule  is  that  no  formal  demand  is  necessary  where  the 
defendant  disputes  his  liability  to  refund.21 

§  238-a.  FORFEITURE  OF  DEPOSIT.  It  is  frequently  provided 
in  contracts  of  sale  that  the  purchaser  shall  forfeit  his  deposit  if 
he  fails  to  comply  with  his  contract  within  a  specified  time.  The 
vendor  cannot  insist  upon  this  forfeiture  if  he  be  unable  to  perform 
the  contract,  on  his  part,  for  want  of  title.  In  such  a  case,  there 
is  a  complete  failure  of  the  consideration,  and  the  vendor  has  no 
more  right  to  keep  the  purchaser's  money  than  he  would  have  to 
compel  specific  performance  of  the  contract.22 

But  want  of  title  in  the  vendor  will  not  prevent  a  forfeiture  of 
the  deposit  when  the  purchaser  well  knew  that  legal  proceedings 
would  be  necessary  to  enable  the  vendor  to  perform  his  contract,  as 
where  the  interest  sold  consisted  of  an  option  on  the  property  of  a 
widow  and  minor  children,  which  could  be  made  effective  only  by 
proceedings  in  the  probate  court  to  authorize  the  sale.23 

§  239.  WHAT  ACTION  THE  PURCHASER  SHOULD  BRING.  In 
those  States  in  which  the  common-law  system  of  procedure  is  re- 
tained, if  the  purchaser  elects  to  disaffirm  or  rescind  the  contract 
by  proceeding  at  law  while  the  contract  is  yet  executory,  the  proper 
action  is  trespass  on  the  case  in  assumpsit,  counting  for  money  had 
and  received  to  the  plaintiff's  use  and  benefit.24  In  this  action,  he 
will  recover  merely  what  he  has  paid,  with  interest,  including  the 
deposit  made  at  the  time  of  the  sale,  which  is  considered  a  part 
of  the  purchase  money,  and  cannot  recover  for  expenses  incurred 

Ml  Sugd.  Vend.   (8th  Am.  ed.)  393   (256). 

*  Jenness  v.  Spraker,   (Ind.  App.)   27  N.  E.  Rep.   117;  Toney  v.  Toney,  73 
Ind.  34;  Brown  v.  Harrison,  93  Ind.  142. 

*  Platte  Land  Co.  v.  Hubbard,  12  Colo.  App.  465 ;  56  Pac.  Rep.  64. 
"McAlpine  v.  Reichenecker,  56  Kans.  100;  42  Pac.  Rep.  339. 

"1  Sugd.  Vend.   (8th  Am.  ed.)  357   (236). 


RECOVER  OR  DETAIN  PURCHASE  MONEY  ON  FAILURE  OF  TITLE.       589 

in  examining  the  title,  nor  for  special  damages  caused  by  the 
vendor's  inability  to  perform  the  contract,  all  of  which  must  be 
sought  in  an  action  on  the  case  for  breach  of  contract  or  for  deceit, 
as  the  case  may  be.26  If,  however,  he  took  from  the  vendor  a  bond 
conditioned  to  make  title,  his  remedy  is  by  action  of  covenant  on 
the  bond.76 

The  remedy  at  law  to  recover  back  the  purchase  money  on  failure 
of  the  title,  where  the  contract  is  executory,  is  concurrent  with  the 
remedy  in  equity  for  rescission.  In  the  action  at  law,  it  cannot  be 
objected  that  the  plaintiff's  remedy  is  in  equity.27 

§  240.  DETENTION  OF  THE  PURCHASE  MONET.  The  pur- 
chaser, may,  also,  while  the  contract  is  executory,  resist  the  pay- 
ment of  purchase  money,  if  the  title  has  failed.28  This  right  de- 

!*Sugd.  Vend.   (8th  Am.  ed.)  357    (236). 

"Post,  §  242.  Rounds  v.  Baxter,  4  Me.  454.  Green  v.  Green,  9  Cow.  (N. 
Y.)  46.  Charles  v.  Dana,  14  Me.  383. 

"Wright  v.  Dickinson,  67  Mich.  580.  This  was  an  action  to  recover  back 
purchase  money  paid  on  an  executory  contract  for  the  sale  of  lands.  It  was 
objected  by  the  defendant  that,  as  the  purchaser  sought  a  rescission  of  the 
contract,  his  remedy  was  in  equity.  The  court,  however,  said  that  there  was 
no  occasion  to  call  for  the  interposition  of  a  court  of  equity.  There  were  no 
deeds  to  be  surrendered  up  and  canceled,  and  nothing  which  was  required  to 
be  perpetuated  by  a  decree.  All  there  was  to  be  ascertained  could  be  ascer- 
tained by  a  jury,  and  that  was,  how  much  in  equity  and  good  conscience 
ought  the  vendors  to  repay  of  the  purchase  money  they  had  received.  All 
benefits  which  the  purchaser  had  received  would  have  to  bo  deducted,  and 
those  could  be  ascertained  and  allowed  for  in  a  common-law  proceeding.  The 
value  of  the  timber  cut  and  removed,  and  all  other  benefits  which  the  pur- 
chaser derived  from  the  contracts,  could  be  adjusted  in  the  action. 

"Smith  v.  Pettus,  1  Stew.  &  Port.  (Ala.)  107;  Whitehurst  v.  Boyd,  8  ATa. 
375;  Pearson  v.  Seay,  35  Ala.  612.  Sorrells  v.  McHenry,  38  Ark.  127.  Clark 
v.  Croft,  51  Ga.  368;  Hall  v.  McArthur,  82  Ga.  572;  9  S.  E.  Rep.  534.  Greg- 
ory v.  Scott,  4  Scam.  (111.)  392.  Cunningham  v.  Gwinn,  4  Bl.  (Ind.)  341. 
Fish  v.  West,  18  Ky.  Law  R.  144;  35  S.  W.  Rep.  624.  Dufief  v.  Boykin,  9 
La.  Ann.  295;  Wamsley  v.  Hunter,  29  La.  Ann.  628.  Buchanan  v.  Lorman, 
3  Gill  (Md.),  51;  Dorsey  v.  Hobbs,  10  Md.  412.  Peques  v.  Mosby,  7  Sm.  & 
M.  (Miss.)  340;  Mobley  v.  Keyes,  13  Sm.  &  M.  (Miss.)  677.  Barton  v.  Rec- 
tor, 2  Mo.  524;  Wellman  v.  Dismukes,  42  Mo.  101.  Earl  v.  Campbell,  14 
How.  Pr.  (N.  Y.)  330.  This,  however,  was  a  suit  to  compel  the  purchaser  to 
accept  a  deed  and  pay  the  purchase  money.  Welch  v.  Watkins,  1  Hayw.  (N. 
C.)  369.  Stoddart  v.  Smith,  5  Binney  (Pa.),  365;  Poke  v.  Kelly,  13  S.  &  R. 
(Pa.)  260;  Withers  v.  Baird,  7  Watts  (Pa.),  227;  32  Am.  Dec.  754;  Col- 
well  v.  Hamilton,  10  Watts  (Pa.),  413;  Cans  v.  Renshaw,  2  Pa.  St.  34;  44 
Am.  Dec.  152.  Puckett  v.  McDonald,  58  Tenn.  395.  West  v.  Shaw,  32  W. 
Va.  195;  9  S.  E.  Rep.  81.  In  Rhodes  v.  Wilson,  12  Colo.  65;  20  Pac.  Rep.  746, 


590  MARKETABLE    TITLE    TO    BEAL   ESTATE. 

pends  upon  the  same  principles  upon  which  he  is  allowed  to  re^ 
cover  back  the  purchase  money  in  a  like  case,  and  is  subject  to  the 
same  exceptions.  Accordingly  it  seems  that  wherever  the  pur- 
chaser might  recover  back  the  purchase  money  for  defect  of  title,  he 
may  detain  the  same  in  an  action  against  him  by, the  vendor,29  and 
this  to  prevent  circuity  of  action,  for  there  would  be  no  reason  in 
requiring  the  defendant  to  pay  over  that  which  he  could  im- 
mediately recover  back  from  the  plaintiff.  The  purchaser  cannot 
be  compelled  to  pay  the  purchase  money  if,  by  reason  of  the  fraud- 
ulent representation  of  the  vendor  with  respect  to  the  title,  he  was 
induced  to  agree  to  accept  a  quit-claim  conveyance  of  the  land.30 
The  fact  that  a  note  for  the  purchase  money  of  land  was  exe- 
cuted to  a  third  party  at  the  request  of  the  vendor,  does  not  affect 
the  right  of  the  purchaser  to  detain  the  purchase  money  on  failure 
of  the  title.31  Neither  is  that  right  affected  by  the  purpose  for 
which  he  bought  the  premises,  though  such  purposes  may  have 
been  dishonest  or  improper.32  Contracts  for  the  sale  of  real  estate 
frequently  provide  that  the  deposit  or  cash  payment  made  by  the 
purchaser  shall  be  forfeited  unless  he  makes  prompt  payment  of 

it  was  held  that  in  an  action  on  a  note  for  the  purchase  money  of  land,  an 
answer  setting  up  failure  of  title  and  inability  of  the  vendor  to  convey,  pre- 
sented a  legal,  and  not  an  equitable  defense.  It  would  seem  that  this  obser- 
vation of  the  court  must  be  taken  with  the  qualification  that  the  plea  must 
show  a  clear  failure  of  title,  and  not  merely  a  doubtful  title,  in  order  to 
have  that  effect.  If  the  plea  avers  facts  rendering  the  title  merely  doubtful, 
the  authorities  conclusively  show  that  the  defense  is  equitable  and  not  legal. 
In  an  action  to  recover  the  purchase  money  of  land,  a  plea  that  the  deed 
tendered  by  the  vendor  was  insufficient  for  lack  of  a  proper  description  of  the 
premises,  but  which  fails  to  show  wherein  the  description  is  defective  or 
uncertain,  is  bad.  Pettys  v.  Marsh,  (Fla.)  3  So.  Rep.  577.  The  cases  in 
the  English  reports  involving  the  right  of  the  purchaser  to  set  up  the  de- 
fense of  failure  of  title  in  an  action  for  the  purchase  money,  are  few  com- 
pared with  those  in  which  the  purchaser  seeks  to  recover  back  the  purchase 
money  on  the  same  ground,  and  these  latter  consist  chiefly  of  actions  to 
recover  back  the  earnest  money,  or  deposit  made  with  the  auctioneer.  The 
causes  of  this  disparity  probably  are  that  owing  to  the  English  practice  of 
carefully  examining  the  title  few  contracts  proceeded  further  than  the  pay- 
ment of  the  earnest  money,  if  the  title  was  bad,  and  that  if  the  purchaser  took 
possession  and  paid  the  purchase  money,  without  examining  the  title,  he 
would  there  be  deemed  to  have  waived  his  objections  to  the  title. 

"Billiard  on  Vend.  71. 

"Hayes  v.  Bonner,  14  Tex.  629. 

"Crawford  v.  Keebler,  5  Lea  (Tenn.),  547. 


BECOVEB  OE  DETAIN  PUECHASE  MONEY  ON  FAILUEE  OF  TITLE.       591 

the  deferred  installments  of  the  purchase  money.  But  under  such  a 
provision  a  forfeiture  cannot  be  declared  where  the  purchaser 
declines  to  pay  the  purchase  money  until  the  vendor  removes  an 
incumbrance  from  the  premises,  or  cures  a  defect  in  the  title.33 

As  between  vendor  and  purchaser  there  is  no  obligation  upon  the 
latter  to  record  the  contract  of  sale  under  which  he  holds.  There- 
fore, where,  for  want  of  such  record,  the  premises  are  subjected  in 
the  hands  of  the  purchaser  to  the  payment  of  claims  against  the 
vendor,  the  purchaser,  having  lost  the  estate,  is  none  the  less  en- 
titled to  detain  the  unpaid  purchase  money.34 

§  241.  EXCEPTIONS  AND  QUALIFICATIONS.  The  principal 
qualifications  of  the  rule  that  the  purchaser  may  recover  back  or 
detain  the  purchase  money  on  failure  of  the  title  hereinbefore 
stated,  are,  that  the  right  does  not  exist  where  the  purchaser  has 
waived  his  objections  to  the  title,35  where  the  vendor  has  a  right  to 
perfect  the  title,36  or  to  require  the  purchaser  to  take  the  title  with 
compensation,  or  abatement  of  the  purchase  money,  in  case  of 
trifling  deficiencies  and  incumbrances,37  and  where  the  purchaser 
refuses  or  neglects  to  restore  the  possession  to  the  vendor  and  to 
place  him  substantially  in  the  same  condition  in  which  he  was 
before  the  contract  was  made.88  It  has  been  held  that  an  agree- 
ment to  convey  to  the  purchaser  in  fee  simple  does  not  entitle  him 
to  rescind  the  contract  and  recover  back  the  purchase  money  on 
the  ground  that  there  are  incumbrances  on  the  property.39  This  is 
a  narrow  interpretation  of  such  an  agreement  and  is  not  supported, 
it  is  believed,  by  the  weight  of  authority,40  except  in  those  cases  in 
which  the  purchase  money  can  be  applied  to  the  discharge  of  the 
incumbrance. 

"Hollenburgh  v.  Morrison,  9  Watts  (Pa.),  408. 

"Wallace  v.  McLaughlin,  57  111.  53. 

"Daniel  v.  Baxter,  1  Lea   (Tenn.),  630. 

"Ante,  ch.  8. 

"Post,  §  325. 

"Post,  §  308. 

"  Post,  §  256,  et  geq. 

M  Fuller  v.  Hubbard,  6  Cow.   (N.  Y.)    13;  16  Am.  Dec.  423. 

"In  Lewis  v.  White,  16  Ohio  St.  441,  it  was  held  that  under  an  agreement 
by  which  he  was  to  receive  a  "  perfect  title,"  the  purchaser  might  rescind 
the  contract  if  the  premises  .were  incumbered. 


592 


MARKETABLE    TITLE    TO    REAL    ESTATE. 


In  the  English  practice  it  has  been  held  that  a  purchaser  cannot, 
at  the  trial  of  an  action  to  recover  his  deposit,  insist  upon  an 
objection  to  the  title  which  he  did  not  raise  at  the  time  he  refused 
to  complete  the  contract;  provided  the  objection  be  of  such  a  nature 
that  if  then  stated  it  could  have  been  removed.41  This  decision  has 
been  cited  approvingly  in  a  recent  American  case,  in  which  it  was 
held  that  it  was  incumbent  on  a  purchaser,  assuming  to  examine 
the  title,  to  make  a  complete  examination,  and  that  in  an  action  to 
recover  the  deposit  he  would  be  limited  to  the  defects  pointed  out 
Avhen  he  rejected  the  title.42  It  has  been  held  that  a  purchaser 
assenting  to  an  assignment  of  the  contract  by  the  vendor  cannot,  on 
failure  of  the  title,  in  the  absence  of  fraud  by  the  assignee,  recover 
back  payments  of  the  purchase  money  made  to  him,  though 
all  parties  at  the  time  of  the  assignment  were  ignorant  that  the 
title  was  bad.  The  assignee  is  in  no  way  responsible  for  the  validity 
of  the  title,  and  the  purchaser  takes  the  risk  incurred  by  making 
payments  to  one  from  whom  they  cannot  be  recovered  back.43 

The  right  to  resist  the  payment  of  the  purchase  money  for  defect 
of  title  is  personal  to  the  vendee.  Therefore,  if  the  vendee  execute 

"Todd  v.  Hoggart,  Moo.  &  M.  128.     Chitty  Covt.   (10th  Am.  ed.)   337. 

°Easton  v.  Montgomery,  90  Cal.  313;  27  Pac.  Rep.  280.  There  are  dicta 
in  this  decision  from  which  it  might  be  inferred  that  a  vendor  negligently 
omitting  an  exemination  of  the  title,  would  thereby  lose  his  right  to  rescind 
the  contract  and  recover  back  the  purchase  money,  if  the  title  failed  from 
causes  that  an  examination  would  have  disclosed.  In  Soper  v.  Arnold,  L.  R., 
14  App.  Cas.  429,  it  was  held  that  a  purchaser  having  accepted  the  title 
shown  by  the  abstract  and  forfeited  his  deposit  by  failing  to  comply  with  the 
contract  cannot,  on  a  decision  in  favor  of  the  second  purchaser  that  the  title 
was  bad  by  reason  of  a  defect  appearing  on  the  face  of  the  same  abstract, 
recover  his  deposit  on  the  ground  of  mutual  mistake  and  failure  of  consider- 
ation. 

^Youmans  v.  Edgerton,  91  N.  Y.  403,  disapproving  Smith  v.,McC\uakey, 
45  Barb.  (N.  Y.)  610.  The  court  observed  that  the  assignment  did  not,  nor 
did  it  purport  to,  transfer  any  right  in  the  land,  or  impose  upon  him  any 
obligation.  It  was  a  mere  authority  to  receive  the  moneys  called  for  by  its 
terms  and  apply  them  to  his  own  use.  With  notice  of  this  limitation,  the 
party  paying  the  money  is  chargeable.  The  purchaser's  case  is,  therefore,  not 
different  from  what  it  would  have  been  if,  as  each  payment  became  due,  the 
vendor  had  given  an  order  for  value  on  the  vendee  to  pay  the  same  to  the 
assignee,  or  an  assignment  in  form  of  each  separate  installment.  In  neither 
case  could  the  debtor,  if  he  accepted  the  order  or  assented  to  the  assignment, 
set  up  in  defense  of  payment  any  equity  between  himself  and  the  assignor, 
nor  after  payment  recover  back  the  money  upon  showing  even  such  equity  as 
would  have  been  a  defense  as  between  himself  and  the  assignor. 


EECOVEB  OE  DETAIN  PUECHASE  MONEY  ON  FAILUEE  OF  TITLE.       593 

a  note  for  the  purchase  money  with  sureties,  the  latter  cannot,  in 
an  action  on  the  note,  set  up  the  plaintiff's  want  of  title  as  a 
defense.44  This  is  a  mere  application  of  the  principle  that  a  surety 
oannot,  as  a  general  rule,  avail  himself  of  his  principal's  right  of 
set-off,  recoupment  or  counterclaim.45 

§  242.  WHAT  OBJECTION'S  TO  THE  TITLE  MAY  BE  MADE  IN 
ACTIONS  FOB,  THE  PURCHASE  MONEY.  As  a  general  rule  the 
purchaser  may  show  in  the  defense  of  an  action  for  the  purchase 
money,  while  the  contract  is  executory,  any  matter  of  law  or  fact 
which  invalidates  or  renders  unmarketable  the  title  of  his  vendor. 
These  may  be  classified  as  defects  which  appear  on  the  face  of  the 
instruments  under  which  the  vendor  claims  title,  such  as  the  ab- 
sence of  words  of  conveyance;  defects  which  appear  from  the 
public  records,  such  as  prior  conveyances  by  the  vendor,  mortgages, 
judgments,  etc.,  and  defects  in  pais,  or  those  to  be  established  by 
the  testimony  of  witnesses,  such  as  want  of  heirship,  personal  dis- 
ability of  a  grantor  in  the  chain  of  title,  etc.  A  further  classifica- 
tion of  the  principal  sources  or  grounds  of  objection  to  the  title  may 
be  seen  in  a  preceding  part  of  this  work.46  At  one  time  it  was  held 
that  the  objection  that  the  title  was  doubtful  or  unmarketable  could 
not  be  availed  of  at  law,  all  titles  at  law  being  regarded  either  as 
good  or  absolutely  bad,  and  the  doctrine  of  unmarketable  titles 
being  cognizable  only  in  a  court  of  equity.  But  now  the  objection 
that  the  title  is  not  such  as  the  purchaser  could  be  required  to  take 
upon  a  bill  for  specific  performance,  may  be  made  at  law  as  freely 
as  in  equity.47 

§  243.  EXPENSES  OF  EXAMINING  THE  TITLE.  In  those  States 
in  which  the  distinction  between  trespass  on  the  case  and  trespass, 
on  the  case  in  assumpsit  is  still  observed,  the  purchaser  cannot,  on 
the  count  for  money  had  and  received  to  his  use,  recover  expenses 
incurred  by  him  in  examining  the  title,  or  in  fact  any  items  of 
expense  or  damage  growing  out  of  the  failure  of  the  title,  because 

"2  Parsons  B.  &  N.  536,  537.  Lewis  v.  McMillen,  41  Barb.  (N.  Y.)  431, 
citing  Gillespie  v.  Torrance,  25  N.  Y.  306;  82  Am.  Dec.  355.  Webb  v. 
Spicer,  13  Q.  B.  886;  Salmon  v.  Webb,  16  Eng.  L.  &  Eq.  37. 

45  There  is,  however,  a  conflict  of  authority  on  this  point.  Brandt  on 
Suretyship,  §  203;  24  Am.  &  Eng.  Encyc.  of  Law,  798. 

48  Ante,  §  77,  et  seq. 

4tPost,  §  286. 

38 


594  MARKETABLE    TITLE    TO    REAL   ESTATE. 

the  right  to  recover  any  such  items  depends  upon  contract,  and  the 
count  for  money  had  and  received  disaffirms  the  contract.48  In  a 
State  in  which  a  system  of  "  Code  procedure  "  has  been  adopted, 
the  purchaser  was  allowed  the  expenses  of  examining  the  title  in 
an  action  to  recover  back  the  purchase  money.49 

§  244  BURDEN  OF  PROOF  LIES  ON  PURCHASER.  MISCEL- 
LANEOUS RULES.  If  the  purchaser  seeks  to  detain  or  to  recover 
back  the  purchase  money  on  the  ground  of  want  of  title  in  the 
vendor,  the  burden  will  be  on  him  to  show  defects  in  the  title.50 
An  agreement  by  the  vendor  to  execute  to  the  purchaser  "  a  good 
and  sufficient  warranty  deed  "  does  not  impose  on  the  vendor  the 
burden  of  showing  a  clear  title  in  such  an  action.51  But  if  the 
purchaser  produces  an  original  abstract  of  title  showing  a  defect 
of  title  in  the  vendor  a  prima  facie  case  is  established  against  the 
latter,  putting  him  to  proof  of  a  better  title.52 

Miscellaneous  rules.  Of  course,  if  the  vendor  disable  himself 
from  performing  his  contract  by  conveying  the  land  to  a  third 
party,  the  purchaser  may  bring  an  action  to  recover  back  the  pur- 
chase money  paid  instead  of  seeking  damages  for  the  violation  of 

48  Ante,  §  93.  1  Sugd.  Vend.  (8th  Am.  ed.)  547  (362)  ;  Chitty  Cont.  (10th 
Am.  ed.)  339.  Canfield  v.  Gilbert,  4  Esp.  221;  Gosbell  v.  Archer,  4  Nev.  & 
Man.  485;  Walker  v.  Constable,  1  Bos.  &  Pul.  306. 

49Wetmore  v.  Bruce,  118  N.  Y.  320;  23  N.  E.  Rep.  303;  Elfenheim  v.  Von 
Hafen,  23  N.  Y.  Supp.  348. 

"Post,  §  281.  Dwight  v.  Cutler,  3  Mich.  566;  64  Am.  Dec.  105;  Allen 
v.  Atkinson,  21  Mich.  361.  Sawyer  v.  Sledge,  55  Ga.  152;  Cantrell  v.  Mobb, 
43  Ga.  193.  Bolton  v.  Branch,  22  Ark.  435. 

"Baxter  v.  Aubrey,  41  Mich.  13,  COOLEY,  J.,  saying:  "The  contract  obli- 
gated the  vendor  when  the  purchase  price  was  paid  to  '  execute  and  deliver ' 
to  the  vendee  'a  good  and  sufficient  warranty  deed.'  Baxter  (the  purchaser) 
claimed  that  this  means  a  warranty  deed  conveying  title  to  the  land,  and 
that  it  was  not  enough  for  the  vendor  to  tender  a  deed  sufficient  in  form, 
but  she  must  go  further  and  show  that  she  had  at  the  time  a  title  which 
the  deed  would  convey.  We  think,  however,  if  the  vendee  accepts  a  contract 
in  which  the  ownership  of  the  vendor  is  assumed,  and  agrees  to  pay  for  the 
land  without  requiring  the  vendor  to  produce  evidence  of  his  title,  the 
burden  will  be  upon  him  to  show  defects.  The  presumption  will  be,  in  the 
absence  of  any  showing,  that  he  satisfied  himself  respecting  the  title  when 
he  made  his  bargain." 

"Hartley  v.  James,  50  N.  Y.  41.  Kane  v.  Rippy,  22  Oreg.  296;  23  Pac. 
Rep.  180.  In  an  action  of  covenant  to  recover  the  purchase  money  a  plea 
of  covenants  performed,  absque  hoc,  etc.,  does  not  put  the  plaintiff's  title 
in  issue  and  impose  on  him  the  burden  of  showing  that  his  title  is  good. 
Hite  v.  Kier,  38  Pa.  St.  72. 


EECOVEE  OK  DETAIN  PUECHASE  MONEY  ON  FAILUBE  OF  TITLE.       595 

the  contract.53  But  if  the  purchaser  rejects  a  good  and  marketable 
title  when  tendered,  and  the  vendor  has  waived  none  of  his  rights 
and  left  no  part  of  the  contract  open,  the  purchaser  cannot  recover 
back  his  deposit  on  the  ground  that  the  vendor  after  the  rejection 
of  the  title  had  conveyed  the  land  to  a  third  person.54 

If  the  purchaser  demands  such  a  deed  as  the  contract  entitles 
him  to  receive,  and  the  vendor  refuses  to  give  it,  but  insists  on  the 
acceptance  of  a  different  and  inferior  title,  the  contract  may  be 
regarded  as  broken,  and  the  purchaser  may  sue  at  once  and  re- 
cover back  whatever  purchase  money  he  has  paid.55 

The  purchaser  cannot  recover  back  the  purchase  money  nor 
detain  that  which  is  unpaid  on  failure  of  the  title,  in  any  case  in 
which  the  rule  caveat  emptor  applies ;  e.  g.,  sales  by  administrators, 
sheriffs,  officers  of  a  court,  and  other  judicial  and  quasi-judicial 
sales.66  This  rule  of  course  does  not  apply  where  the  question  is 
only  as  to  the  validity  or  legality  of  the  sale.67 

The  purchaser  may  not  only  recover  back  his  deposit  where  there 
is  a  palpable  failure  of  the  title,  but  he  is  entitled  to  that  privilege 
if  the  vendor  fail  to  produce  a  marketable  title,  or  one  that  is  free 
from  reasonable  doubt.  What  is  sufficient  to  render  a  title  un- 
marketable will  be  elsewhere  considered.68  If  the  vendor's  abstract 
shows  a  bad  title,  the  purchaser  can  maintain  an  action  to  recover 
back  his  deposit  without  offering  to  complete  the  contract  and 
demanding  a  conveyance.59 

"Burley  v.  Shinn,  1  Neb.  433.  Gwin  v.  Calegaris,  139  Cal.  384;  73 
Pac.  851. 

M  Beyer  v.  Braender,  57  N.  Y.  Super.  Ct.  429. 

"Shrove  v.  Webb,  1  Term,  732.  Reddington  v.  Henry,  48  N.  H.  279; 
Little  v.  Paddleford,  13  N.  H.  167.  Foote  v.  West,  1  Den.  (N.  Y.)  544; 
Camp  v.  Morse,  5  Den.  (N.  Y.)  161;  Laurence  v.  Taylor,  5  Hill  (N.  Y.),  107. 
In  Wilson  v.  Getty,  57  Pa.  St.  266,  the  purchase  money  had  been  deposited 
in  bank  "  to  be  paid  over  as  soon  as  counsel  for  the  parties  pronounced  the 
deed  to  be  complete  and  perfect."  Counsel  having  pronounced  the  deed 
tendered  to  be  insufficient  (the  title  not  being  good)  it  was  held  that 
the  purchaser  might  immediately  recover  the  deposit.  This,  however,  was 
a  suit  in  equity  instead  of  an  action  at  law,  but  the  principle  is  the  same  in 
either  case. 

"Rorer  on  Jud.  Sales,  §  458.  Ellis  v.  Anderton,  88  N.  C.  472,  distinguish- 
ing Shields  v.  Allen,  77  N.  C.  375. 

87  See  Shipp  v.  Wheless,  33  Miss.  646. 

"•Post,  ch.   31. 

»1  Sugd.  Vend.    (8th  Am.  ed.)   368   (241). 


596  MARKETABLE    TITLE    TO    REAL   ESTATE. 

If  the  vendor  be  unable  to  perform  his  contract  for  want  of  title, 
the  purchase  money  may  be  recovered  back  though  the  contract 
was  void,  as  where  it  was  within  the  Statute  of  Frauds.  The 
defendant  holds  the  money  without  consideration  and  is  bound  to 
return  it.60 

The  purchase  money  may,  on  failure  of  title,  be  recovered  by  the 
purchaser  virtually  in  other  forms  of  proceeding  than  the  action 
for  money  had  and  received.  Thus,  in  an  action  for  breach  of  the 
contract  or  for  breach  of  covenant,  the  damages  are,  as  a  general 
rule,  measured  by  the  consideration  money  and  interest.  And  in 
epuity  upon  a  rescission  of  the  contract,  the  court  decrees  a  return 
of  the  purchase  money  to  the  purchaser. 

In  the  action  for  money  had  and  received  to  his  use,  disaffirming 
the  contract  on  failure  of  the  title,  the  purchaser  cannot  recover 
more  than  the  money  paid,  though  the  estate  has  risen  in  value.61 
The  rule  is  the  same,  however,  in  an  action  for  damages  unless  the 
vendor  was  guilty  of  fraud.62 

§  245.  BIGHT  TO  RESCIND  WHEN  THE  ESTATE  IS  INCTJM- 
BEEED.  In  many  cases  the  purchaser  may  rescind  the  contract 
and  recover  back  or  detain  the  purchase  money,  if  the  estate  is  in- 
cumbered.63  Where  an  incumbrance  is  discovered  previously  to  the 
execution  of  the  conveyance  and  payment  of  the  purchase  money, 

80  Gosbell  v.  Archer,  4  Nev.  &  Mann.  485 ;  Adams  v.  Fairbain,  2  Stark.  277. 
Gillett  v.  Maynard,  5  Johns.  (N.  Y.)  85;  4  Am.  Dec.  329.  Here,  however,  the 
vendor  merely  refused  to  convey.  Buck  v.  Waddle,  1  Ohio,  357.  Thompson 
v.  Gould,  20  Pick.  (Mass.)  134,  semble.  Flinn  v.  Barber,  64  Ala.  193.  Collins 
v.  Thayer,  74  111.  138. 

"1  Sugd.  Vend.  358;  Dutch  v.  Warren,  2  Burr.  1010;  Dale  v.  Sollett,  4 
Burr.  2133. 

"Ante,  §§  91,  101. 

•*  See  ch.  31,  §  304,  et  seq.  A  restriction  which  prevents  the  purchaser 
from  using  a  portion  of  the  frontage  of  the  premises  otherwise  than  for 
a  court  yard  is  an  incumbrance  entitling  him  to  rescind  the  contract  and 
recover  back  his  deposit.  Wetmore  v.  Bruce,  54  N.  Y.  Super.  Ct.  149;  affd., 
118  N.  Y.  319;  23  N.  E.  Rep.  303,  citing  Trustees  v.  Lynch,  70  N.  Y.  440; 
26  Am.  Rep.  615,  and  distinguishing  Riggs  v.  Pursell,  66  N.  Y.  199.  In 
Colorado  it  has  been  held  that  an  irrigation  contract  is  not  appurtenant  to 
the  lands  irrigated,  and  that  if  a  vendee  of  such  lands  pays  a  balance  due 
on  such  a  contract  under  which  the  land  was  to  be  irrigated  for  a  term  of 
years,  he  cannot  look  to  the  vendor  to  reimburse  him.  Chamberlain  v.  Amter, 
(Colo.)  27  Pac,  Rep.  87. 


RECOVEE  OE  DETAIN  PUECHASE  MONEY  ON  FAILUBE  OF  TITLE.       597 

the  vendor  must  discharge  it  whether  he  has  or  has  not  agreed  to 
covenant  against  incumbrances,  before  he  can  compel  payment  of 
the  purchase  money.64  The  mere  existence  of  an  incumbrance  on 
the  premises  on  the  day  fixed  for  completing  the  contract,  is  no 
breach  by  the  vendor  if  he  be  then  prepared  to  remove  the  incum- 
brance.86 But  if  the  purchaser  then  makes  a  tender  and  demands 
performance,  and  the  vendor  fails  to  remove  the  incumbrance,  or 
provide  for  its  removal  to  the  satisfaction  of  the  purchaser,  the 
latter  may  rescind  and  recover  his  deposit.66 

The  question,  what  is  an  incumbrance,  and  under  what  circum- 
stances the  purchaser  may,  because  of  its  existence,  refuse  to  pro- 
ceed with  the  contract,  is  considered  elsewhere  in  this  work.67 
Little  difficulty  is  experienced  in  determining  what  is  a  pecuniary 
incumbrance,  except  in  the  case  of  undetermined  and  inchoate 
liabilities  affecting  the  premises  at  the  time  of  the  contract,  such  as 
taxes  and  assessments.  We  have  seen  under  what  circumstances 
taxes  and  assessments  upon  the  warranted  premises  will  be  deemed 
a  breach  of  the  covenant  against  incumbrances.68  Where  the  con- 
tract is  executory,  the  purchaser  is  in  equity  regarded  as  the  owner 
of  the  estate,  and  must  pay  the  taxes  accruing  between  the  making 
of  the  contract  and  the  execution  of  the  conveyance,  unless  the 
parties  have  entered  into  some  special  agreement  respecting  the 
taxes.69  In  a  case  in  which  the  contract  provided  that  the  purchaser 

**2  Sugd.  Vend.  (8th  Am.  ed.)  192.  Classman  v.  Condon,  27  Utah  433; 
7«  Pac.  343. 

"Higgins  v.  Eagleton,  155  N.  Y.  466;  50  N.  E.  Rep.  287. 

••  Raben  v.  Risnikoff,  88  N.  Y.  Supp.  470 ;   95  App.  Div.  68. 

"Post,  §  304,  et  seq.,  ch.  31.     See,  also,  ante,  §  123. 

*•  Ante,  §  124.  "  Taxes  "  include  special  assessments.  Giles  v.  Peo.  Nat. 
Bank,  198  111.  307;  64  N.  E.  Rep.  1060;  Williams  v.  Monk,  179  Mass.  22;  60 
N.  E.  Rep.  394. 

"Furber  v.  Purdy,  69  Mo.  601.  Sherman  v.  Savery,  2  Fed.  Rep.  50o. 
Gary  v.  Gundlefinger,  (Ind.)  40  N.  E.  Rep.  1112.  Williamson  v.  Neeves,  94 
Wis.  656;  69  N.  W.  Rep.  806;  Clinton  v.  Shugart,  126  Iowa,  179;  101  N.  W. 
Rep.  785.  The  liability  of  the  parties  for  taxes  is  fixed  by  statute  in  a  number 
of  the  States.  Thus,  in  Nebraska  a  vendor  who  sells  after  April  first  is 
liable  for  the  taxes  of  that  year.  Campbell  v.  McClure,  (Neb.)  63  N.  W. 
Rep.  926.  In  a  case  in  Michigan  in  which  the  lands  sold  were  wild  and 
uncultivated,  and  the  purchaser  did  not  take  actual  possession,  it  was  held 
that  the  taxes  for  the  current  year  should  be  divided  equally  between  the 
purchaser  and  the  seller.  Thompson  v.  Noble,  108  Mich.  26;  65  N.  W. 
Rep.  746. 


598  MARKETABLE    TITUS    TO    MAT.   ESTATE. 

should  pay  the  taxes  accruing  between  the  making  of  the  contract 
and  the  execution  of  a  conveyance,  the  purchaser  was  held  entitled 
to  recover  the  taxes  so  paid  by  him,  upon  the  inability  of  the 
vendor  to  convey  for  want  of  title.70  Where  the  contract  is  made 
after  the  completion  of  a  public  improvement,  but  before  the  im- 
position of  an  assessment  therefor,  the  purchaser  must  protect  him- 
self by  provision  in  the  contract.71  A  tax  sale  of  the  premises 
made  prior  to  the  contract  of  sale,  is  an  incumbrance  which  the  pur- 
chaser must  remove.72 

As  a  general  rule  the  purchaser  cannot  rescind  the  contract  on 
the  ground  that  the  title  is  incumbered  if  he  can  apply  the  purchase 
money  to  the  removal  of  the  incumbrance.73  If  he  pays  the  pur- 
chase money  in  ignorance  of  the  incumbrance,  he  may  recover  it 
back,  and  in  an  action  for  that  purpose  it  is  not  necessary  for  him 
to  go  behind  the  record  and  show  that  the  incumbrance  has  not  been 
paid;  he  has  a  right  to  recover  if  the  incumbrance  appears  un- 
satisfied of  record.74  If  the  vendor  produces  an  abstract  showing 
that  the  incumbrance  has  been  satisfied,  he  must  further  show 
that  the  person  making  such  entry  had  authority  for  that  purpose.75 
In  a  case  in  which  the  purchaser  paid  off  an  incumbrance  which 
had  been  fraudulently  concealed  from  him,  and  the  amount  so  paid, 
together  with  what  he  had  already  paid  to  the  vendor,  amounted 
to  the  purchase  price  of  the  land,  the  court  stayed  the  collection  of 
the  purchase-money  notes  and  directed  that  a  deed  be  executed  to 
the  purchaser.71  If  the  contract  expressly  require  that  the  premises 
shall  be  conveyed  to  the  purchaser  free  and  clear  of  incumbrances, 

'•Missouri  K.  &  T.  R.  Co.  v.  Pratt  (Kans.),  67  Pac.  Rep.  464. 

w  People  v.  Gilon,  9  X.  Y.  Supp.  212.    Ante,  §  124. 

"Green  v.  Hernz,  37  N.  Y.  Supp.   887;  2  App.  Diy.  255. 

"Post,  §  304.  Pangborn  v.  Miles,  10  Abb.  N.  Cas.  (N.  Y.)  42;  Rinaldo  T. 
Houseman,  1  Abb.  (N.  Cas.)  (N.  Y.)  312.  In  Lyon  v.  O'Kell,  14  Iowa,  233, 
and  Lyon  v.  Day,  15  Iowa,  469,  the  court  below  rejected  evidence  offered  by 
the  defendant  that  the  property  was  so  incumbered  that  the  plaintiff  could 
not  perform  his  contract  to  convey  a  good  title.  This  was  reversed  on  appeal. 
The  grounds  of  the  ruling  below  do  not  appear.  Similar  evidence  was  ex- 
cluded in  Murphy  v.  Richardson,  28  Pa.  St.  288,  on  the  ground  that  the 
purchaser  had  bought  subject  to  the  incumbrance,  but  this  decision  was 
reversed  on  appeal,  the  court  holding  that  whether  in  fact  the  purchaser  had 
been  so  made  was  a  question  to  be  determined  by  the  jury. 

"Kimball  v.  Bell.  47  Kans.  757;  28  Pac.  Rep.  1015. 

"O'Neill  v.  Douthett.  40  Kans.  690;  20  Pac.  Rep.  493. 

"Rodman  v.  Williams,  4  Bl.  (Ind.)  72. 


KECOVER  OE  DETAIN  PURCHASE  MONEY  ON  FAILUEE  OF  TITLE.       599 

he  cannot  be  required  to  accept  a  conveyance  so  long  as  the  estate 
remains  incumbered,  though  he  be  permitted  to  deduct  the  amount 
of  the  incumbrances  from  the  unpaid  purchase  money.  Under  such 
a  contract  the  vendor  cannot  impose  upon  the  purchaser  the  burden 
of  applying  the  purchase  money  to  the  incumbrances  and  procuring 
their  satisfaction.77 

If  the  purchaser  accept  a  conveyance  from  a  third  person  who 
contracted  to  convey  to  his  vendor,  he  will  be  held  to  have  waived 
his  right  to  have  recourse  against  his  vendor  to  recover  back  money 
paid  to  remove  an  incumbrance  upon  the  premises.78  Where  the 
contract  obliges  the  vendor  to  remove  incumbrances  from  the  estate 
there  must  be  a  demand  accompanied  by  a  notice  of  the  removal  of 
the  incumbrance  before  he  can  maintain  an  action  to  recover  the 
purchase  money.79  It  has  been  held  that  if  the  vendee  is  protected 
as  an  innocent  purchaser  of  the  estate  without  actual  or  construc- 
tive notice  of  an  incumbrance  thereon,  he  cannot  elect  to  waive  such 
protection,  rescind  the  contract  and  recover  back  the  purchase 
money  merely  because  such  incumbrance  exists.  As  to  him,  the 
estate  is  unincumbered  and  he  must  complete  the  contract.80  The 
purchaser  cannot,  of  course,  be  compelled  to  pay  the  purchase 
money  and  rest  on  the  promise  of  the  vendor  to  remove  the  incum- 
brance and  execute  a  conveyance  afterward.  He  has  a  right  to  see 
that  the  purchase  money  is  actually  applied  to  the  discharge  of  the 
incumbrance.*1 

"Webster  v.  Kings  Co.  Trust  Co.,  145  N.  Y.  275;  39  N.  E.  Rep.  964, 
obiter,  the  purchaser  in  that  case  having  in  fact  waived  his  objections. 

"Herryford  v.  Turner,  67  Mo.  296. 

'•Fitts  v.  Hoitt,  17  N.  H.  530,  the  court  saying:  "The  plaintiff  had  his 
own  time  for  performing  the  acts  which  would  by  the  agreement  have  entitled 
him  to  the  payment  of  the  money  collected  by  the  defendant,  and  he  alone 
could  know  at  what  time  he  became  entitled.  It  would  be  an  extreme  hard- 
ship to  permit  him,  Immediately  upon  the  consummation  of  the  act,  which 
did  not  require  the  knowledge  or  concurrence  of  the  defendant  for  its  due 
performance,  without  notice  to  him,  to  maintain  an  action  for  the  money. 
Hence,  the  general  rule  that  where  the  fact  upon  which  the  defendant's 
liability  arises  lies  peculiarly  within  the  knowledge  and  privity  of  the 
plaintiff,  notice  thereof  must  be  stated  to  have  been  given  to  the  defendant 
before  the  commencment  of  the  action."  Citing  Saund.  PI.  &  Ev.  132;  Rex 
v.  Holland,  5  T.  R.  621;  2  Saund.  62a. 

80  Wilkins  v.  Irvine,  33  Ohio  St.  138. 

"Billiard  Vend.  (2d  ed.)  277.  Wilhelm  v.  Fimple,  31  Iowa,  131;  7  Am. 
Rep.  117. 


600  MARKETABLE    TITLE    TO    REAL   ESTATE. 

§  246.  BUYING  WITH  KNOWLEDGE  OF  DEFECT  OR  INCTJM- 
BBANCE.  If  the  purchaser  enter  into  the  contract  knowing  that 
the  title  is  imperfect  or  that  there  are  incumbrances  on  the  land,  he 
will,  as  a  general  rule,  be  deemed  to  have  waived  his  objections  to 
the  title,  though  not  necessarily  his  right  to  require  a  conveyance 
with  general  covenants  for  title.82  But  if  the  vendor  expressly 
agreed  to  remove  defects  or  clear  off  incumbrances  contemplated 
by  the  parties  at  the  time  the  contract  was  made,  he  cannot  enforce 
the  payment  of  the  purchase  money  until  he  has  performed  his 
contract  in  that  regard.83  Where  an  objection  to  the  title  was  raised 
by  the  purchaser  and  the  vendor  agreed  to  refund  the  purchase 
money  "  if  it  should  be  adjudged  that  he  had  no  legal  right  to  sell, 
and  by  reason  thereof  the  purchaser  should  be  compelled  to  give  up 
the  premises,"  it  was  held  that  the  purchaser  could  not  detain  the 
purchase  money  unless  he  had  been  actually  or  constructively 
evicted.84 

If  the  purchaser  buys  knowing  that  the  vendor  has  only  an 
equitable  title,  he  cannot  detain  the  purchase  money  or  recover  back 
such  of  it  as  may  have  been  paid.  It  may  be  that  the  vendor  will 
have  the  legal  title  by  the  time  the  purchase  money  is  paid.85  It 

83 Ante,  §  85,  "Waiver  of  Objections."  Allen  v.  Hopson,  1  Freem.  Ch. 
(Miss.)  276;  Wiggins  v.  McGimpsey,  13  Sm.  &  M.  (Miss.)  532.  Where 
held,  also,  that  the  purchaser  would  be  charged  with  notice  of  defects  from 
the  record.  Contra,  Daly  v.  Bernstein,  (New  Hex.)  28  Pac.  Rep.  7G4. 

"Black  v.  Croft,  51  Ga.  368.  McCool  v.  Jacobus,  7  Rob.  (N.  Y.)  115. 
Turney  v.  Hemmenway,  53  111.  97.  In  Swindell  v.  Richey,  41  Ind.  281,  it 
appeared  that  the  owners  of  land,  at  a  sale  thereof  by  a  commissioner,  had 
agreed  to  pay  off  a  ditch  assessment  and  save  the  purchaser  harmless  there- 
from, and  it  was  held  that  the  purchaser  might  set  off  the  assessment 
against  the  purchase  money  in  a  suit  therefor  by  the  commissioner.  In 
Ganz's  Appeal,  (Pa.  St.)  15  Atl.  Rep.  883,  it  was  held  that  a  purchaser 
might  set  off  against  the  purchase  money  the  amount  paid  by  him  to  remove 
outstanding  interests,  but  that  he  must  pay  the  balance  of  the  purchase 
money  to  the  vendor.  The  fact  that  the  vendor  contracted  to  remove  the 
outstanding  interests  but  failed  to  remove  a  part  of  them,  does  not  affect 
his  right  to  recover  subject  to  the  purchaser's  right  of  set-off.  Where  a 
sub-purchaser  assumes  the  payment  of  a  balance  of  purchase  money  due  by 
his  vendor  to  the  original  vendor,  he  cannot  object  to  the  title  on  the 
ground  that  it  is  incumbered  by  a  mortgage  in  favor  of  such  original 
vendor.  Campbell  v.  Shrum,  3  Watts  (Pa.),  60. 

"Failing  v.  Osborne,  3  Oreg.  498. 

*  Smith  v.  Haynes,  9  Me.  128. 


BECOVEK  OB  DETAIN  PUKCHASE  MONEY  ON  FAILUEE  OF  TITLE.       601 

may  be  doubted  whether  the  purchaser  would  be  permitted  to 
detain  the  purchase  money  even  if  he  bought,  believing  that  the 
vendor  had  the  legal  title,  unless  time  were  of  the  essence  of  the 
contract,  or  it  should  appear  that  the  purchaser  would  be  injured 
by  delay  in  getting  in  the  legal  title.  The  fact  that  the  incum- 
brance  of  which  the  purchaser  complains  is  a  matter  of  public 
record,  does  not  affect  the  right  to  rescind.88 

The  purchaser  seeking  to  be  relieved  from  his  bargain  on  the 
ground  that  the  title  is  defective,  need  not  aver  that  he  was  igno- 
rant of  the  defect  at  the  time  of  the  sale.  It  is  for  the  seller  to 
allege  and  prove  that  the  purchaser  was  aware  of  the  condition  of 
the  title." 

§  247.  CHANCING  BARGAINS.  The  right  of  the  purchaser  to 
rescind  an  executory  contract  for  the  sale  of  lands  by  recovering 
back  the  purchase  money,  or  detaining  that  which  remains  unpaid, 
depends  of  course  upon  the  nature  of  his  contract  with  the  vendor. 
The  right  of  the  purchaser  in  general  to  an  indefeasible  title  has 
been  elsewhere  considered.88  It  is  only  necessary  to  say  here  that 
the  purchaser  is  bound  to  complete  his  contract  if  both  parties  were 
fully  advised  of  objections  to  the  vendor's  title,  and  the  purchaser 
made  a  chancing  bargain,  taking  the  risk  of  the  assertion  of  ad- 
verse claims.89  In  such  a  case  he  has  neither  the  right  to  rescind 

••Judson  v.  Wass,  11  Johns.  (N.  Y.)  525;  6  Am.  Dec.  392.  Daly  v. 
Bernstein  (New  Mex.)'  28  Pac.  Rep.  764. 

"Taul  v.  Bradford,  20  Tex.  264;  Hurt  v.  McReynolds,  20  Tex.  595. 

"Ante,  §  57. 

"Ewart  v.  Bowman,  70  S.  C.  Rep.  357;  49  S.  E.  Rep.  867.  Ellis  v. 
Anderton,  88  N.  C.  472.  It  is  true  the  sale  was  by  an  administrator  in 
this  case  under  an  order  of  court,  so  that  the  rule  caveat  emptor  applied; 
but  no  distinction  is  perceived  between  a  case  in  which  the  purchaser  ex- 
pressly agrees  to  take  such  title  as  he  can  get,  and  one  in  which  he  buys, 
knowing  that  if  the  title  is  bad  he  will  be  compelled  to  take  it.  See,  further, 
Twohig  v.  Brown,  85  Tex.  55;  19  S.  W.  Rep.  768;  Cooper  v.  Singleton,  19 
Tex.  267;  70  Am.  Dec.  333.  There  would  seem  to  be  no  more  doubt  about 
the  proposition  that  the  purchaser  cannot  recover  back  or  detain  the  pur- 
chase money  when  the  contract  is  executory,  if  he  took  the  risk  of  the  title, 
than  in  a  case  in  which  he  accepts  a  quit-claim  conveyance  of  the  premises, 
knowing  that  the  title  is  bad  or  doubtful.  The  only  practical  difference 
between  the  two  cases  would  seem  to  be  that  the  acceptance  of  the  quit- 
claim with  notice,  conclusively  shows  that  he  took  the  risk  of  the  title, 
while  in  the  case  of  an  executory  contract  the  burden  devolves  on  the  vendor 
to  show  an  acceptance  of  the  risk. 


602  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

the  contract  nor  to  require  a  conveyance  with  covenants  for  title, 
because  it  is  the  intention  of  the  parties  that  the  vendor  shall  be 
relieved  from  all  responsibility  or  liability  of  any  kind  in  respect 
to  the  title.  Many  titles  are  publicly  known  to  be  doubtful  and  are 
bought  and  sold  with  that  understanding.  There  have  been  in- 
stances in  which  the  purchaser  has  bought  such  a  title,  taken  a 
quit-claim  deed,  and  afterwards  sold  and  conveyed  at  a  profit  to 
a  person  seeking  a  like  opportunity  of  gain  and  taking  the  risk 
of  losing  the  premises.  Consequently  nothing  is  better  settled  than 
that  in  such  a  ca?e  the  purchaser  cannot  refuse  to  complete  the 
contract  on  the  ground  that  the  title  is  bad.'*0  But  IV;  burden  Avill 
be  upon  the  ve'ndor  to  show  that  the  purchaser  took  the  risk  of  the 
title91  The  purchaser,  however,  will  not  be  deprived  of  his  right 
to  require  a  conveyance  with  covenants  for  title  by  the  mere  fact 
that  he  buys  with  knowledge  that  the  title  is  doubtful,  for  it  may 
be  that  the  covenants  he  is  to  receive  induce  him  to  enter  into  the 
contract.92  The  burden  will  be  upon  the  vendor  to  show  that  the 
purchaser,  seeking  to  detain  the  purchase  money,  took  the  risk  of 
the  title.93 

If  the  vendor  informs  the  purchaser  that  he  has  no  title,  and  sells 
merely  his  possession,  the  purchaser  cannot  recover  back  the  pur- 
chase money  on  the  ground  that  the  title  has  failed ;  first,  because 
he  gets  all  to  which  he  is  entitled  under  the  contract,  and  again, 
because  the  money  is  voluntarily  paid,  with  full  knowledge  of  the 
facts,  and  there  can  be  no  imputation  of  fraud  or  mistake.94 

§  248.  EFFECT  OF  ACCEPTING  TITLE  BOND.  The  fact  that 
the  purchaser  took  from  the  vendor  a  bond  conditioned  to  make 
title  to  the  premises,  commonly  called  a  "  title  bond,"  does  not, 
where  the  condition  of  the  bond  has  been  broken,  deprive  him  of 

90  Ante,    §    11.     Jones   v.   Taylor,   7   Tex.   240;    56   Am.   Dec.   48;    Neel    Y. 
Prickett,    12   Tex.    137.     Winne   v.    Reynolds,   6    Paige    (N.   Y.),   407,   dint. 
Kerney  v.  Gardner,  27  111.  162.     Maxfield  v.  Bierbauer,  8  Minn.  413   (367). 

91  Littlefield  v.  Tinsley,  26  Tex.  353. 
"Ante,  §  80. 

M  Twohig  v.  Brown,  85  Tex.  55 ;   19  S.  W.  Rep.  768. 

"Vest  v.  Weir,  4  Bl.  (Ind.)  135.  Here  the  vendor  was  a  mere  trespasser 
on  the  land.  He  sold  his  possession  to  the  plaintiff  for  $350,  telling  him,  at 
the  time,  that  he  had  no  title,  and  that  the  land  belonged  to  the  United 
States.  The  decision  in  this  case  was  approved  in  Mayors  v.  Brush,  7  Ind. 
235,  and  there  distinguished  from  Hawkins  v.  Johnson,  4  Bl.  (Ind.)  21. 


EECOVEE  OE  DETAIN  PUECHASE  MONEY  ON  FAILURE  OF  TITLE.       603 

the  right  to  recover  back  the  purchase  money,  eo  nomine,  nor  will 
he  be  driven  to  an  action  on  the  bond  for  damages,  merely  because 
he  did  not  abandon  the  contract  within  a  reasonable  time  after 
discovery  of  the  vendor's  want  of  title,  for  it  may  be  that  he  had 
reason  to  believe  that  the  vendor  would  perfect  the  title.95 

The  right  of  the  purchaser  to  resist  the  payment  of  the  purchase 
money  on  failure  of  the  title,  where  the  contract  is  executory,  has 
been  denied  in  a  case  in  which  the  purchaser  took  a  bond  condi- 
tioned to  make  title  with  covenants  of  warranty,  and  had  not  been 
evicted  by  the  adverse  claimant.  Practically,  the  acceptance  of  the 
title  bond  by  the  purchaser  was  given  the  same  effect,  as  respects 
the  detention  of  the  purchase  money,  as  the  acceptance  of  a  con- 
veyance with  covenants  of  warranty.96  There  are,  however,  several 
cases  in  which  the  opposite  view  has  been  taken.97 

"Hurst  v.  Means,  2  Sneed    (Tenn.),  546.     Bellows  v.  Cheek,  20  Ark.  424. 

"Coleman  v.  Howe,  5  How.  (Miss.)  469;  37  Am.  Dec.  164,  the  court  say- 
ing: "If,  then,  there  has  been  no  fraud,  nor  any  eviction,  and  the  agreement 
is  executed,  the  vendee  can  have  no  claim  to  relief  on  the  mere  ground  of  a 
failure  of  title.  1  Johns.  Ch.  (N.  Y.)  213.  But  as  in  the  present  case  the 
deed  has  not  been  delivered,  the  contract  remains  executory,  and  a  different 
rule,  it  is  said,  must  prevail.  This  distinction  is  laid  down  and  supported 
by  the  court  in  the  case  of  Miller  v.  Long,  3  A.  K.  Marsh.  (Ky.)  335.  In 
that  case  the  right  of  the  vendee  to  be  relieved,  where  the  deed  has  been 
delivered,  is  denied,  but  it  is  said  (ob.  diet.)  to  be  otherwise  where  the  con- 
tract is  executory,  to  execute  the  deed  in  future.  In  the  first  case  the  court 
recognizes  the  general  rule  laid  down,  that  the  vendee  must  resort  to  his 
remedy  at  law  upon  his  covenants.  But  in  cases  like  the  present,  where  the 
vendee  takes  the  precaution  to  secure  himself  by  a  penal  bond  covenanting 
to  convey  a  title  with  full  covenants,  and  that  appears  to  be  the  consideration 
of  his  promise  to  pay  the  money,  though  we  may  consider  the  covenant  to 
convey  as  an  executory  contract,  yet  it  is  difficult  to  conceive  how  that 
circumstance  can  vary  the  rule  as  to  relief.  In  the  latter  case  the  vendee 
has  his  remedy  at  law  upon  the  covenants  in  the  bond,  and  he  would  seem 
to  be  equally  subject  to  the  general  rule  to  resort  to  that  remedy,  if  there 
is  no  fraud  nor  eviction."  See,  also,  McGhee  v.  Jones,  10  Ga.  127.  Black  v. 
Walker,  98  Ga.  31;  26  S.  E.  Rep.  477;  Johnson  v.  Dorough,  99  Ga.  644; 
27  S.  E.  Rep.  187;  Preston  v.  Walker,  109  Ga.  290;  34  S.  E.  Rep.  571; 
Foute  v.  Elder,  109  Ga.  713;  35  S.  E.  Rep.  118.  Mallard  v.  Allred,  106 
Ga.  503;  32  S.  E.  Rep.  588.  Horne  v.  Rogers,  110  Ga.  362;  35  S.  E. 
Rep.  715.  Strong  v.  Waddell,  56  Ala.  471,  473,  dictum.  Coleman  v.  Bank, 
115  Ala.  307;  22  So.  Rep.  84.  Roach  v.  Rutherford,  4  Des.  (S.  C.)  126;  6 
Am.  Dec.  606. 

47  Hurst  v.  Means,  2  Sneed  (Tenn.),  546.  Bellows  v.  Cheek,  20  Ark.  424. 
Mobley  v.  Keys,  13  Sm.  &  M.  (Miss.)  677.  Brittain  v.  McLain,  6  Ired.  Eq. 


604  MAEKETABLE    TITLE    TO    HEAL    ESTATE. 

If  the  vendor  execute  a  title  bond,  it  would  seem  that  the  pur- 
chaser should  not  be  allowed  to  surrender  the  possession,  rescind 
the  contract  and  recover  back  the  purchase  money,  on  the  ground 
that  the  title  is  bad  or  unmarketable,  until  the  condition  of  the 
bond  has  been  actually  broken.  If,  however,  that  condition  be 
broken,  if  the  vendor  be  unable  to  make  title  on  the  day  specified, 
and  the  purchaser  be  ready,  able  and  willing  to  complete  the  con- 
tract, he  may  rescind  and  recover  back  the  purchase  money  al- 
ready paid.98 

A  condition  in  the  bond  that  the  obligor  shall  convey  a  good  and 
clear  title  free  from  all  incumbrances,  refers  to  the  title  which  is 
to  pass  by  the  deed  and  not  to  the  state  of  things  existing  at  the 
time  of  the  execution  of  the  bond.  Hence,  the  condition  is  broken 
by  the  condemnation  of  a  part  of  the  premises  for  the  purpose  of 
widening  a  highway  after  the  execution  of  the  bond,  and  the 
obligee  is  entitled  to  recover  back  payments  made  by  him  on  the 
land." 

(N.  C.)  165.  Benson  v.  Coleman,  8  Rich.  L.  (S.  C.)  45.  Neel  v.  Prickett, 
12  Tex.  137.  (Compare  Sayre  v.  Mohney,  30  Oreg.  238;  47  Pac.  Rep.  197.) 
In  Georgia  it  has  been  held  that  the  obligee  in  the  bond  could  not  rescind 
nor  detain  the  purchase  money,  unless  he  could  show  clearly  a  paramount 
outstanding  title  against  the  obligor,  and  also  show  fraud  on  his  part,  or 
that  he  is  insolvent,  or  a  non-resident,  or  show  other  facts  which  would 
authorize  interference  with  the  contract  by  a  court  of  equity.  Black  v. 
Walker,  98  Ga.  31;  26  S.  E.  Rep.  477. 

"Smith  v.  Lewis,  26  Conn.  110.  Clark  v.  Weis,  87  111.  438;  29  Am.  Rep. 
60;  Hough  v.  Rawson,  17  111.  588;  Smith  v.  Lamb,  26  111.  396;  79  Am.  Dec. 
381.  Sanderlin  v.  Willis,  98  Ga.  278;  25  S.  E.  Rep.  437.  Kares  v.  Covell, 
180  Mass.  206;  62  N.  E.  Rep.  244.  In  Miller  v.  Owens,  Walk.  (Miss.) 
245  (1826),  the  vendor  and  his  wife  sold  to  the  purchaser  certain  interests 
in  real  property,  among  others  that  of  an  infant  child  of  the  wife  by  a 
former  husband,  and  executed  a  bond  to  make  title  or  indemnify  the  pur- 
chaser against  any  claim  of  the  infant.  While  the  contract  was  yet  execu- 
tory, the  purchaser  refused  to  pay  the  purchase  money  on  the  ground  of 
the  defective  title,  and  judgment  was  rendered  in  his  favor  by  the  court 
below.  This  was  reversed  on  appeal,  the  court  saying  that  though  the 
vendor  "  could  not  sell  the  right  of  another  person  to  a  tract  of  land  to 
the  prejudice  of  the  real  owner,  yet  having  possession  and  an  undivided 
interest  in  the  premises,  and  having  sold  each  interest  separately,  but  given 
possession  of  the  whole  to  the  purchaser,  and,  as  it  appears;  the  purchaser 
sought  the  contract  and  took  the  security  he  required,  and  he  and  his  heirs 
remaining  in  the  quiet  and  peaceable  possession  of  the  premises,  we  can 
see  no  reason  why  he  should  not  pay  the  purchase  money." 

"  Kares  v.  Covell,  180  Mass.  206;  62  N.  E.  Rep.  244. 


EECOVEB  OK  DETAIN  PUBCHASE  MONEY  ON  FAILUEE  OF  TITLE.       605 

§  249.  INQTJIBY  INTO  CONSIDERATION  OF  SEALED  INSTBT7- 

MENT.  At  common  law  the  consideration  of  a  sealed  instrument 
could  not  be  inquired  into ;  consequently,  in  an  action  on  a  bond 
given  for  the  purchase  money  of  land,  the  defendant  could  not 
show  that  the  consideration  had  failed  for  want  of  title  in  the  ven- 
dor.1 This  rule,  however,  has  been  very  generally  changed  through- 
out the  United  States  by  statutes  abolishing  all  distinctions  be- 
tween sealed  and  unsealed  instruments,2  or  allowing  failure  of 
consideration  to  be  set  up  as  a  defense  to  an  action  on  an  instru- 
ment under  seal.3 

§  250.  BIGHT  TO  ENJOIN  THE  COLLECTION  OF  THE  PTJR- 
CHASE  MONEY  WHILE  THE  CONTBACT  IS  EXECUTORY.  If  the 
purchaser  has  had  no  opportunity  to  set  up  the  defense  of  want 
of  title  in  the  vendor  in  an  action  for  the  purchase  money,  he  may 
have  relief  in  equity  by  way  of  injunction.  But  he  will  not,  in 
some  of  the  States,  be  entitled  to  that  remedy,  where  there  is  a 
judgment  for  the  purchase  money,  unless  he  had  no  opportunity 
to  make  his  defense  at  law.4  In  this  respect  the  rule  appears  to 
be  the  same  whether  the  contract  is  executed  or  executory.  The 
vendor,  having  the  legal  title,  may,  of  course,  maintain  ejectment 
at  any  time  against  the  purchaser  if  he  fail  to  pay  the  purchase 
money.  Failure  of  the  title,  it  is  apprehended,  would  be  no  de- 
fense to  such  an  action.  It  would  seem,  however,  that  if  the  pur- 

'Coleman  v.  Sanderlin,  5  Humph.    (Term.)    561. 

*Mullins  v.  Jones,  1  Head    (Term.),  519. 

'Rawle  Covts.    (5th  ed.)    §    325. 

4  (As  to  the  right  to  an  injunction  where  the  contract  has  been  executed 
by  a  conveyance  with  covenants  for  title,  see  post,  ch.  34.)  High  on  Injunc- 
tions (3d  ed.),  §  410;  Shipp  v.  Wheless,  33  Miss.  646;  McLaurin  v.  Parker, 
24  Miss.  509.  Kebler  v.  Cureton,  Rich.  Eq.  Gas.  (S.  C.)  143.  Bartlett  v. 
Loudon,  7  J.  J.  Marsh.  (Ky.)  641;  Dudley  v.  Byran,  6  J.  J.  Marsh.  (Ky.) 
231.  Moore  v.  Hill,  59  Ga.  760.  Bullitt  v.  Songster,  3  Munf.  (Va.)  54. 
In  this  case  the  vendor  had  agreed  in  writing  that  if  the  purchaser  should 
be  evicted  from  any  part  of  the  land  the  purchase  money  should  be  corres- 
pondingly abated.  A  purchaser  paying  off  incumbrances  after  the  judgment 
against  himself  for  the  purchase  money,  may  have  an  injunction  against 
the  judgment  if  the  vendor  is  insolvent.  Shelby  v.  Marshall,  1  Blackf.  (Ind.) 
384.  An  injunction  against  proceedings  to  collect  the  purchase  money  will 
not  be  granted  for  the  purpose  of  allowing  the  purchaser  to  avail  himself 
of  counterclaim,  offset  or  unliquidated  demands,  which  might  be  availed  of  in 
a  defense  to  the  action  at  law.  Freize  v.  Chapin,  2  R.  I.  429.  Nor  if  the 
plaintiff  merely  seeks  damages  in  equity.  Robertson  v.  Hogshedas,  3  Leigh 


606  MABKETABLE    TITLE    TO    REAL    ESTATE. 

chaser  were  entitled  to  detain  the  premises  in  order  to  enforce  his 
lien  for  the  purchase  money  paid,  or  if,  under  the  contract,  he 
had  a  right  to  compel  the  vendor  to  remove  incumbrances  or  ob- 
jections to  the  title,  an  injunction  would  lie  to  stay  proceedings 
in  the  action  of  ejectment. 

The  fact  that  the  purchaser  had  a  remedy  over  by  action  at  law 
on  a  title  bond  executed  by  the  vendor  has  been  held  no  ground  for 
refusing  an  injunction  against  the  collection  of  the  purchase 
money.5  The  injunction  will  not  be  granted  if  the  difficulty  in  ob- 
taining title  was  brought  about  by  the  neglect  of  the  purchaser 
himself;  as  where  he  failed  to  pay  the  purchase  money  in  the  life- 
time of  the  vendor  so  that  proceedings  in  chancery  to  obtain  the 
title  from  infant  heirs  at  law  became  necessary.6  Nor  will  the  in- 
junction be  granted  on  the  ground  that  the  title  has  failed,  if  it 
appear  that  the  rights  of  all  adverse  claimants  have  become  barred 
by  the  Statute  of  Limitations.7 

If  the  vendor  fraudulently  concealed  or  misrepresented  the  state 
of  his  title  an  injunction  will  lie  to  restrain  the  collection  of  the 
purchase  money;8  and  that  too,  it  is  apprehended,  without  regard 
to  the  fact  that  the  fraud  may  be  or  might  have  been  set  up  as  a 
defense  at  law.9  The  remedy  in  equity  in  such  cases  is  concurrent 
with  that  at  law. 

(Va.),  667.  High  on  Injunctions  (3d  ed.),  §  411.  If  the  purchaser's  obliga- 
tion for  the  purchase  money  provide  that  it  shall  not  be  payable  until  certain 
disputes  respecting  the  title  are  ended,  the  pendency  of  those  disputes  con- 
stitutes no  ground  for  an  injunction  against  an  action  on  the  obligation, 
because  the  fact  that  the  disputes  are  not  ended  is  a  complete  defense  at 
law.  Hence,  it  has  been  said  that  in  a  contract  to  pay  money  on  a  con- 
tingency, it  being  necessary  to  allege  and  prove  the  happening  of  the  con- 
tingency before  a  judgment  at  law  can  be  obtained,  an  injunction  against 
the  judgment,  if  suffered  by  the  payor,  cannot  be  sustained  on  the  ground 
that  the  contingency  has  not  occurred.  Allen  v.  Phillips,  2  Litt.  (Ky.)  1. 

'Brittain  v.  McLain,  6  Ired.  Eq.  (N.  C.)  165.  Heavner  v.  Morgan,  41 
W.  Va.  428;  23  S.  E.  Rep.  874. 

«Prout  v.  Gibson,  1  Cranch   (C.  C.),  389. 

T  Amick  v.  Bowyer,  3  W.  Va.  7 ;  Piedmont  Coal  Co.  v.  Green,  3  W.  Va.  54. 
Peers  v.  Barnett,  12  Grat.  (Va.)  410,  where  the  injunction  suit  had  lingered 
on  the  docket  until  defects  in  the  title  were  cured  by  the  statute. 

'  Starke  v.  Henderson,  30  Ala.  438 ;  Lanier  v.  Hill,.  25  Ala.  554.     In  both 
these  cases  the  vendor,  an  administrator  c.  *.  a.,  had  falsely  represented  that 
he  had  authority  under  the  will  to  sell. 
,  »  Post,  chs.  29,  34,  §  329. 


EECOVEE  OB  DETAIN  PUECHASE  MONEY  ON  FAILUBE  OF  TITLE.       607 

In  Pennsylvania  the  vendor  is  entitled  to  a  judgment  for  the 
whole  of  the  purchase  money,  but  a  stay  of  execution  will  be 
awarded  to  the  nurchaser  until  the  vendor  removes  any  lien  or 
incumbrance  upon  the  premises  for  which  he  is  liable.10 

The  remedy  by  injunction  against  proceedings  to  collect  the  pur- 
chase money  is  not  necessarily  in  disaffirmance  or  rescission  of  the 
contract ;  for  it  may  be  that  the  object  of  the  injunction  is  to  com- 
pel the  vendor  to  remove  defects  in  the  title,  or  to  apply  the  pur- 
chase money  to  the  discharge  of  incumbrances,  or  to  enforce  some 
equity  in  behalf  of  the  purchaser  which  does  not  require  a  rescis- 
sion of  the  contract.11  In  such  cases  it  is  customary  to  grant  a 
temporary  injunction,  and  of  course  there  need  be  no  surrender  of 
the  premises  by  the  purchaser.  But  if  he  seeks  a  perpetual  in- 
junction, which  is  in  effect  a  rescission  of  the  contract,  he  must 
restore  the  premises  to  the  vendor.  He  cannot  have  both  the  in- 
junction and  the  benefit  of  his  purchase.12  But  while  a  perpetual 
injunction  substantially  rescinds  the  contract,  the  complainant 
must  pray  a  rescission  in  terms ;  othewise  it  will  be  presumed  that 
he  intends  to  keep  both  the  premises  and  the  purchase  money,  and 
the  bill  will  be  dismissed.13  If  the  purchaser  buys  with  knowledge 
that  the  title  is  defective,  he  cannot  have  a  perpetual  injunction 
unless  it  appear  that  the  title  cannot  be  perfected."  This  seems  a 
reasonable  rule,  for  it  may  be  that  the  purchase  was  made  with  the 
understanding  that  the  title  should  be  perfected  before  payment 
of  the  purchase  money  might  be  compelled.  But  if  the  contract  was 

10  Jackson  v.  Knight,  4  Watts  &  Serg.    (Pa.)  412. 

"Thus,  in  Price  v.  Browning,  4  Grat.  (Va.)  72,  an  injunction  was  granted 
until  the  extent  of  the  purchaser's  losses  from  incumbrances  on  the  premises 
could  be  ascertained.  And  in  Reeves  v.  DicKey,  10  Grat.  (Va.)  138,  the  cause 
was  remanded  to  the  lower  court  with  instructions  to  grant  a  temporary 
injunction  until  it  could  be  ascertained  whether  the  title  could  be  perfected, 
and  to  perpetuate  the  injunction  if  it  appeared  that  a  good  title  could  never 
be  made. 

"Edwards  v.  Strode,  2  J.  J.  Marsh.  (Ky.)  506;  Markham  v.  Todd,  2  J.  J. 
Marsh.  (Ky.)  364,  where  it  was  held  that  the  court  might  at  the  time  of 
perpetuating  the  injunction,  decree  that  the  premises  be  restored  to  the 
vendor.  Brannum  v.  Ellison,  5  Jones  Eq.  (N.  C.)  435. 

"Williamson  v.  Raney,  Freem.  Ch.    (Miss.)    112. 

14  As  to  right  to  injunction  under  similar  circumstances  where  the  con- 
tract has  been  executed  by  a  conveyance  with  covenant  for  title,  see  post, 
ch.  34.  Reeves  v.  Dickey,  10  Grat.  (Va.)  138.  In  Lucas  v.  Chapeze.  2  Litt. 


608  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

one  of  pure  hazard,  the  purchaser  to  get  merely  such  title  as  the 
vendor  had,  there  can  be  no  doubt  that  the  injunction  should  be 
denied.16  * 

If  by  the  terms  of  the  contract  payment  of  the  purchase  money 
is  a  condition  precedent  to  the  purchaser's  right  to  demand  a  deed, 
it  has  been  held  that  a  bill  to  enjoin  the  collection  of  the  purchase 
money  on  the  ground  that  the  title  has  failed  should  be  dismissed, 
•unless  the  complainant  alleges  that  he  offered  to  pay  the  purchase 
money  and  demanded  a  deed.  If,  however,  he  had  made  such 
tender  and  demand,  and  the  defendant  had  refused,  or  was  unable 
to  convey  a  good  title,  the  collection  of  the  purchase  money  would 
be  enjoined  until  the  sufficiency  of  the  title  could  be  determined.1' 
If  the  vendor  refuse  to  convey  the  land  by  good  and  sufficient  deed, 
or  refuse  or  neglect  to  procure  the  signature  of  all  necessary  parties 
to  the  conveyance  in  order  that  the  title  may  be  perfected,  the  col- 
lection of  the  purchase  money  may  be  enjoined.17  If  the  vendor 
seeks  a  dissolution  of  the  injunction  the  burden  will  be  upon  him 
to  show  that  he  can  convey  to  the  purchaser  such  a  title  as  the  con- 
tract requires.18  If  an  injunction  against  the  collection  of  the  pur- 
chase money  be  dissolved  on  the  ground  that  the  title  has  been  or 
may  be  perfected  by  the  vendor,  neither  costs  nor  damages  should 
be  awarded  against  the  purchaser,  the  vendor  having  incurred  these 
by  reason  of  his  own  default.19 

(Ky.)  31,  the  complainants  had  purchased  an  equitable  title  with  knowledge 
that  a  suit  by  the  vendee  to  obtain  the  legal  title  was  pending.  It  was  held 
that  an  injunction  to  restrain  the  collection  of  the  purchase  money  was 
properly  dismissed  in  the  absence  of  evidence  that  the  suit  to  obtain  the  legal 
title  was  not  being  pursued  with  reasonable  diligence.  Williamson  v.  Raney, 
Freem.  Ch.  (Miss.)  112. 

"Carrico  v.  Froman,  2  Litt.  (Ky.)  178,  where  the  purchaser  agreed  ia 
writing  that  the  purchase  money  should  not  be  detained  if  adverse  claims 
were  asserted. 

"Mitchell  v.  Sherman,  Freem.  Ch.  (Miss.)  120,  where  the  vendor  gave 
bond  to  convey  "  a  good  and  sufficient  title,  as  soon  as  the  entire  and  full 
amount  of  the  purchase  money  should  be  paid." 

"Jayne  v.  Brock,  10  Grat.  (Va.)  211.  McKoy  v.  Chiles,  5  T.  B.  Mon. 
(Ky.)  259,  where  the  vendor  failed  to  procure  a  relinquishment  of  his  wife's 
contingent  right  of  dower.  Fishback  v.  Williams,  3  Bibb  (Ky.),  342. 

"Moredock  v.  Williams,  1  Overt.  (Tenn.)  325  (257);  Moore  v.  Cooke,  4 
Hayw.  (Tenn.)  85  (281). 

18  Fishback  v.  Williams,  3  Bibb  (Ky.),  342.  Each  party  was  decreed  to 
pay  his  own  costs.  Porter  v.  Scobie,  5  B.  Mon.  ( Ky. )  387,  reversing  the  court 


KECOVEE  OE  DETAIN  PUECHASE  MONEY  ON  FAILUEE  OF  TITLE.       609 
§    251.  RIGHTS  AGAINST  TRANSFEREE  OF  PURCHASE-MONEY 

NOTE.  The  purchaser  of  a  negotiable  purchase-money  note  after 
maturity  of  course  takes  subject  to  the  vendee's  right  of  defense  for 
want  of  title  to  the  land.20  So,  also,  one  who  purchases  before 
maturity  with  notice  of  the  vendee's  equities.21  But  a  purchaser 
for  value  without  notice  will  not  be  affected  by  failure  of  the  ven- 
dor's title.22  If  the  note  was  not  negotiable,  the  purchaser,  whether 
befere  or  after  maturity,  takes  subject  to  equities  between  the 
vendor  and  the  vendee.28 

§  252.  REFUSAL  OF  VENDOR  TO  CONVEY  FOR  WANT  OF  TITLE. 
It  has  been  held  in  England  that  if  the  purchaser  execute  a  note  to 
secure  deferred  payments  of  the  purchase  money  he  cannot,  if  the 
vendor  refuses  to  convey,  rescind  the  contract  by  detaining  the  pur- 
chase money.  He  must  pay  the  note  and  take  his  action  to  recover 
damages  for  breach  of  the  contract.  The  reason  is  that  the  pur- 
chaser, by  executing  a  distinct  instrument  promising  to  pay  a  part 
of  the  purchase  money  on  a  particular  day,  undertakes  to  pay  on 
that  day  at  all  events.24  This  rule  was  recognized  in  a  case  in  Ne\f 
York  in  which  the  failure  of  the  vendor  to  convey  was  occasioned 
by  his  want  of  title.25  It  was  unnecessary,  however,  to  decide  the 
point  in  that  case,  and  it  may  be  doubted  whether  the  rule  estab- 
lished by  the  English  case  would  be  followed  in  America,  in  a  case 
in  which  the  purchaser  had  a  clear  right  to  rescind  the  contract  on 
the  ground  that  the  title  had  failed.26  There  would  seem  to  be  no 

below;  Lampton  v.  Usher,  7  B.  Mon.  (Ky.)  57.  In  Reeves  v.  Dickey,  10  Grat. 
(Va.)  138,  costs  were  refused  the  vendor  even  though  the  purchaser  knew 
when  he  bought  that  the  title  was  defective. 

'•Johnson  v.  Silsfiell,  6  Baxt.   (Tenn.)   41. 

=1Knapp  v.  Lee,  3  Pick.  (Mass.)  452.  Lamb  v.  James,  87  Tex.  485;  29  S. 
W.  Rep.  647. 

MGee  v.  Saunders,  66  Tex.  333. 

"Timms  v.  Shannon,  19  Md.  296;  81  Am.  Dec.  632. 

"Spiller  v.  Westlake,  2  B.  &  Ad.  155;  22  E.  C.  L.  74;  Moggridge  v.  Jones, 
14  East,  486;  3  Camp.  38.    Freeligh  v.  Platt,  5  Cow.  (N.  Y.)  494.    Chapmaa. 
v.  Eddy,  13  Vt.  205. 

25 Lewis  v.  McMillen,  41  Barb.  (N.  Y.)  430. 

28  It  was  intimated  by  PARKE,  J.,  in  Spiller  v.  Westlake,  supra,  that  the  de- 
fendant might  have  resisted  the  payment  of  the  note  in  that  case  if  the  cir- 
cumstances had  been  such  that  the  money  in  dispute  might  have  been  recovered 
back  if  the  defendant  had  paid  it  as  a  deposit,  which  is  as  much  as  to  say 
that  the  defendant  might  have  resisted  the  payment  of  the  note  if  he  had 
been  entitled  to  rescind  the  contract. 

39 


610  MABKETABLE    TITLE    TO    HEAL    ESTATE. 

reason  in  requiring  the  purchaser  to  pay  over  money  to  the  vendor 
which  he  might  immediately  recover  back  from  him  as  damages 
for  breach  of  the  contract. 

§  253.  BIGHT  TO  RESCIND  AS  DEPENDENT  ON  TENDER  OF 
PURCHASE  MONEY  AND  DEMAND  OF  DEED.  The  duty  of  the 
purchaser  to  tender  the  purchase  money  and  demand  a  conveyance 
as  a  condition  precedent  to  the  right  to  rescind  the  contract  on 
failure  of  the  title,  and  to  detain  or  recover  back  the  purchase 
money,  as  the  case  may  be,  has  been  elsewhere  considered.27  It  may 
be  added  here,  however,  that  when  the  vendors  title  is  defective 
and  the  vendee,  upon  ascertaining  it,  refuses  to  take  such  title-and 
instead  of  taking  measures  to  cure  the  defects,  simply  holds  himself 
ready  to  convey  such  title  as  he  has  and  requests  the  vendee  to- 
accept  it,  giving  him  notice  that  he  will  be  held  for  any  loss,  the 
vendee  is  not  called  upon  to  make  any  other  or  further  tender  or 
offer  of  payment  in  order  to  rescind  the  contract  by  detaining  the 
purchase  money  or  recovering  back  the  payments  made.28  In  a  case 
in  which  there  was  evidence  that  the  purchaser  had  paid  part  of  the 
purchase  money  and  was  willing  and  ready  to  pay  the  balance  and 
to  accept  a  deed,  which  deed,  however,  was  not  tendered  by  the 
vendor,  and  could  not  be  given  because  the  title  was  bad.  it  was 
held  that  the  failure  of  the  purchaser  to  tender  the  purchase  money 
and  demand  a  deed  did  not  affect  his  right  to  rescind,  though  there 
had  been  no  absolute  refusal  by  the  vendor  to  make  a  deed.29  If, 
after  tender  of  the  purchase  money  and  demand  of  a  conveyance, 
the  vendor  do  not  perform  the  contract  on  his  part,  the  purchaser 
is  not  bound  to  demand  the  return  of  his  purchase  money  or  notify 
the  vendor  of  his  intent  to  rescind  the  contract  before  he  can  main- 
tain an  action  to  recover  back  what  he  had  paid.30 

"Ante,  §  86.    Leach  v.  Rowley,  138  Cal.  709;  72  Pac.  Rep.  403. 

"  Hartley  v.  James,  50  N.  Y.  41.  In  MeCullough  v.  Boyd,  120  Pa.  St.  552 : 
14  Atl.  Rep.  438,  it  was  held  that  the  purchaser  must  aver  payment  or  tender 
of  the  purchase  money  in  full,  or  set  forth  a  reason  for  non-payment,  before 
he  can  recover  back  such  of  the  purchase  money  as  he  may  have  paid,  where 
by  the  terms  of  his  contract,  he  is  not  entitled  to  a  conveyance  until  the 
purchase  money  has  been  fully  paid. 

^Linton  v.  Allen,  154  Mass.  432;  28  N.  E.  Rep.  780. 

"Gillett  v.  Maynard,  5  Johns.  (N.  Y.)  85;  4  Am.  Dec.  329;  Camp  v.  Morse. 
5  Denio  (N.  Y.),  164;  Van  Benthuysen  v.  Crasper,  8  Johns.  (N.  Y.)  259; 


RECOVER  OK  DETAIN  PURCHASE  MONEY  ON  FAILURE  OF  TITLE.       611 

It  has  been  held  that  if  payment  of  the  purchase  money  and  the 
conveyance  of  a  good  title  to  the  purchaser  are  by  the  contract  to  be 
simultaneous  or  concurrent  acts,  the  purchaser  may  resist  the  pay- 
ment of  the  purchase  money  though  he  has  not  been  evicted  from 
the  premises,  unless  the  vendor  shows  that  he  has  tendered  to  the 
purchaser  such  a  conveyance  and  title  as  the  contract  requires.81 
If,  however,  under  the  contract,  the  purchaser  is  obliged  to  pay  the 
purchase  money  before  the  making  of  the  conveyance  he  cannot 
refuse  so  to  do  on  the  ground  that  the  title  is  bad,  without  surrend- 
ering or  offering  to  surrender  the  premises.32  If  under  the  contract 
the  purchaser  is  bound  to  tender  the  purchase  money  before  he  can 
rescind,  the  mere  abandonment  of  the  possession  without  such 
tender,  demand  of  title  and  refusal,  will  constitute  no  defense  to  an 
action  for  the  purchase  money.33  If  the  contract  provide  that  the 
purchase  money  shall  not  be  paid  until  a  good  title  is  tendered,  or 
if  the  vendor  permits  the  purchaser  to  take  possession  without  any 
agreement  as  to  when  the  purchase  money  shall  be  paid,  the  pur- 
chaser cannot  be  required  to  tender  performance  or  bring  the 
money  into  court,  as  a  condition  precedent  to  his  right  to  rescind 
the  contract  on  failure  of  the  title.34 

There  are  cases  which  hold  that  if  the  purchaser  executes  his 
notes  for  the  purchase  money,  payable  in  installments,  and  takes  a 
bond  from  the  vendor  conditioned  to  make  title  when  the  last  in- 
stallment is  paid,  the  covenants  are  independent,  and  the  purchaser 
cannot  detain  any  of  the  installments  on  the  ground  that  the  title  is 
defective;35  the. reasons  being,  among  others,  that  the  vendor  may 

Frost  v.  Smith,  7  Bosw.  (N.  Y.)'  108.  Chatfield  v.  Williams,  85  Cal.  518; 
24  Pac.  Rep.  839. 

"Feemster  v.  May,  13  Sm.  &  M.  (Miss.)  275;  53  Am.  Dec.  83;  Wiggins 
v.  McGimpsey,  Id.  532,  citing  Robb  v.  Montgomery,  20  Johns.  (N.  Y.)  15; 
Sage  v.  Ranney,  2  Wend.  (N.  Y.)  534.  Peques  v.  Mosby,  7  Sm.  &  M.  (Miss.) 
340.  But  see  McMath  v.  Johnson,  41  Miss.  439,  and  cases  cited  infra. 

"Cases  cited  in  last  note.     George  v.  Stockton,  1  Ala.  136. 

*  Clemens  v.  Loggins,  1  Ala.  622. 

"2  Warvelle  Vend.  915,  916. 

"Ante,  §  88.  Post,  ch.  32.  2  Warvelle  Vend.  843.  Gibson  v.  Newman,  1 
How.  (Miss.)  341;  Coleman  v.  Rowe,  5  How.  (Miss.)  4GO:  37  Am.  Dec.  164; 
Clopton  v.  Bolton,  23  Miss.  78;  McMath  v.  Johnson,  41  Miss.  439,  disapprov- 
ing Peques  v.  Mosby,  7  S.  &  M.  (Miss.)  540,  and  Feemster  v.  May,  13  S.  &  M. 
(Miss.)  275;  53  Am.  Dec.  83.  Drenner  v.  Boyer,  5  Ark.  497.  Monsen  v. 


612  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

perfect  the  title  before  all  of  the  purchase  money  is  paid  j36  and  that 
it  may  be  that  he  looks  to  the  purchase  money  itself  as  a  fund  for 
the  removal  of  objections  to  the  title.37  If,  however,  the  vendor 
were  insolvent  or  for  any  other  reason  the  purchaser's  rights  would 
be  greatly  endangered  by  a  rigid  observance  of  the  foregoing  rule, 
it  is  apprehended  that  the  purchase  money  might  be  paid  into  court 
to  be  there  applied  to  the  clearing  up  of  the  title  or  returned  to  the 
purchaser  if  it  should  be  found  that  no  title  could  be  had.  It  has 
also  been  held  that  if  the  vendor  execute  a  title  bond  conditioned  to 
convey  on  payment  of  purchase  money,  such  payment  constitutes  a 
condition  precedent  to  the  conveyance  of  the  title ;  so  that  if,  after 
default,  in  the  payment  of  the  purchase  money  the  vendor  conveys 
the  premises  to  a  stranger,  thereby  incapacitating  himself  from 
conveying  to  the  purchaser,  that  fact  constitutes  no  defense  to  an 
action  for  the  purchase  money.  The  purchaser  must  pay  the  pur- 
chase money  and  look  to  his  remedy  on  the  title  bond.38  And  if  in 
such  case  instead  of  being  merely  in  default  in  the  payment  of  the 
purchase  money  the  purchaser,  after  paying  part  thereof,  abandons 
the  contract,  the  vendor  is  free  to  sell  and  convey  the  premises  to 
whom  he  chooses,  and  the  purchaser  cannot,  upon  such  conveyance, 

Stevenson,  56  111.  335.  Hudson  v.  Swift,  20  Johns.  (N.  Y.)  25.  This,  how- 
ever, was  an  action  to  recover  back  the  purchase  money;  but  the  principle 
appears  to  be  the  same  in  either  case.  Ellis  v.  Hoskins,  14  Johns.  (N.  Y.) 
363.  Loveridge  v.  Coles,  72  Minn.  57;  74  N.  W.  Rep.  1109. 

"Greenby  v.  Cheevers,  9  Johns.  (N.  Y.)   127. 

"Green  v.  Green,  9  Cow.  (N.  Y.)  46;  Ellis  v.  Hoskins,  14  Johns.  (N.  Y.) 
363. 

58 Foster  v.  Jared,  12  111.  454,  the  court  saying:  "The  conveyance  of  the 
land  and  the  payment  of  the  note  in  question  are  not  concurrent  acts.  The 
payment  of  the  note  is  to  precede  the  conveyance.  The  vendor  is  not  bound 
to  accept  a  conveyance  until  all  the  notes  are  paid.  The  doctrine  that  in  the 
case  of  dependent  covenants  neither  party  can  recover  unless  he  has  fully  per- 
formed or  offered  to  perform  on  his  part  has,  therefore,  no  application  to  this 
case.  The  defendant  cannot  put  the  vendor  in  default  until  he  has  paid  or 
offered  to  pay  the  entire  purchase  money.  He  undertook  to  pay  the  first  two 
installments  before  he  was  to  receive  a  conveyance.  He  chose,  as  respects 
this  portion  of  the  consideration,  to  rely  on  the  covenants  of  the  vendor  (in 
the  title  bond)  to  compel  the  execution  of  a  deed.  It  is  no  excuse  that  the 
latter  has  now  no  existing  capacity  to  make  a  good  title.  It  will  be  enough 
if  he  has  the  title  when  the  defendant  has  the  right  to  demand  a  conveyance. 
He  may  require  a  perfect  title  before  he  can  be  called  on  to  convey."  Citing 
Sage  v.  Eanney,  2  Wend.  (N.  Y.)  532. 


RECOVER  OR  DETAIN  PURCHASE  MONEY  ON  FAILURE  OF  TITLE.       613 


recover  back  any  of  the  payments  made.     The  vendor  by  his  con- 
duct forfeits  what  has  been  paid.39 

We  have  seen  that  in  cases  in  which  the  payment  of  the  purchase 
money  is  not  by  the  express  terms  of  the  contract  made  a  condition 
precedent  to  the  right  of  the  purchaser  to  demand  a  conveyance  of 
an  indefeasible  title,  no  such  payment  or  tender  of  payment  need  bo 
made  as  a  condition  precedent  to  the  right  to  rescind  upon  an  abso- 
lute and  undisputed  failure  of  the  title.40  This  rule  applies  as  well 
where  the  purchaser  has  only  an  "  option  "  to  purchase  as  where 
the  purchase  has  been  actually  made.41 

§  254.  OFFER  TO  RESCIND.  As  a  general  rule  the  action  to 
recover  back  the  purchase  money  on  failure  of  the  title,  or  a  defense 
of  an  action  to  recover  the  purchase  money  on  the  same  grounds, 
cannot  be  maintained  by  the  purchaser  unless  he  has  given  notice 
to  the  vendor  of  his  intention  to  rescind,  and  has  offered  to  sur- 
render whatever  he  has  received  under  the  contract.42  The  reason 
of  the  rule  is  that  the  vendor  must  be  given  an  opportunity  to  re- 
move objections  to  the  title  and  to  perform  the  contract  on  his  part. 
It  has  been  held,  however,  that  if  the  purchaser  did  not  take  pos- 
session and  has  received  nothing  under  the  contract,  he  may  recover 
back  or  detain  the  purchase  money  without  an  offer  to  rescind.43 

§  255.  PLEADING  AND  PROOF.  It  has  been  held  that  the  pur- 
chaser seeking  to  recover  back  or  detain  the  purchase  money  must 
set  forth  in  his  pleadings  facts  showing  want  of  title  in  his  vendor, 
and  that  a  general  averment  that  the  title  is  bad  is  insufficient.44 
But  if  the  contract  be  executory  and  the  objection  to  the  title  is 
that  it  is  doubtful  or  unmarketable,  the  better  opinion  seems  to  be 

39  Rounds  v.  Baxter,  4  Me.  454.     Seymour  v.  Dennett,  14  Mass.  266. 

"  Ante,  this  section. 

41  Burke  v.  Davies,  85  Cal.  110. 

12 1  Sugd.  Vend.  (14  th  ed.)  243;  2  Warvelle  Vend.  883.  Herbert  v.  Stan- 
ford, 12  Ind.  503,  citing  Pope  v.  Wray,  4  M.  &  W.  451.  McQueen  v.  State 
Bank,  2  Ind.  413,  which  were  all  cases  of  sales  of  personal  property.  Havens 
v.  Goudy,  1  Ohio,  449.  Williams  v.  Thomas,  7  Kulp  (Pa.  Com.  PL),  371. 
Higley  v.  Whittaker,  8  Ohio,  201.  Mullins  v.  Bloomer,  11  Iowa,  360.  Carney 
v.  Newberry,  24  III.  203,  case  of  personal  property. 

"Herbert  v.  Stanford,  12  Ind.  503,  and  cases  cited  supra. 

"Walker  v.  Towns,  23  Ark.  147.  Copeland  v.  Lawn,  10  Mo.  266.  In  an 
action  to  recover  purchase  money,  a  plea  that  the  vendor  had  no  title  when 
he  was  required  to  convey,  and  that  the  premises  were  incumbered  by  a 
mortgage,  is  bad  for  duplicity.  Camp  v.  Morse,  5  Den.  (N.  Y. )  161. 


614  MABKETABLE    TITLE    TO    BEAL    ESTATE. 

that  the  burden  of  proof  is  on  the  vendor  to  show  prima  facie  that 
the  title  is  good.45  But,  obviously,  the  vendor  cannot  be  compelled 
to  show  the  non-existence  of  any  and  every  fact  which  might  in- 
validate his  title,  for  there  would  be  practically  no  end  to  such  an 
inquiry.  He  could  hardly  be  compelled  to  offer  proof  of  the  com- 
petency of  every  grantor  in  his  chain  of  title.  Having  shown  a 
record  title  free  from  objection  on  its  face,  the  burden  shifts  to  the 
purchaser,  who  should  then  point  out  the  defect  of  which  he  com- 
plains/6 

The  purchaser  cannot,  on  appeal  from  a  judgment  against  him 
for  the  purchase  money,  object  that  the  title  to  the  estate  was 
defective  or  incumbered,  unless  he  made  that  defense  in  the  court 
below.47 

"Negley  v.  Lindsey,  67  Pa.  St.  217;  5  Am.  Rep.  427,  SHABSWOOD,  J.,  saying: 
"  How  can  a  defendant  (purchaser)  show  defects  in  the  plaintiff's  title  unlesa 
it  is  produced  to  him.  It  is  not  enough  to  say  that  he  may  resort  to  the 
records.  He  must  have  some  clue  to  trace  it  there.  Besides,  there  are  many 
necessary  facts  as  to  which  the  records  will  give  him  no  information,  such 
as  descents  under  the  intestate  laws,  the  death  of  tenants  for  life,  and  others 
of  a  similar  kind." 

"Ante,  §  117.  Hollifield  v.  Landrum,  (Tex.  Civ.  App.)  71  S.  W.  Rep.  979, 
citing  the  text. 

"Snevily  v.  Egle,  1  Watts  &  S.  (Pa.)  480. 


CHAPTER  XXV. 

OF  THE  OBLIGATION  OF  THE  PURCHASER  TO  RESTORE  THE  PREM- 
ISES TO  THE  VENDOR. 

GENERAL  PRINCIPLES.     §   256. 

VENDOR  MUST  BE  PLACED  IN  STATU  QUO.     §  257. 

RESTORATION  OF  PREMISES  A  CONDITION  PRECEDENT  TO 
RESCISSION.  §  258. 

RULE  IN  PENNSYLVANIA.     §  259. 

RESTORATION  OF  THE  PREMISES  IN  CASES   OF  FRAUD.    §  260. 

WHEN  PURCHASER  NEED  NOT  RESTORE  THE  PREMISES.  PUR- 
CHASER'S LIEN.  §  261. 

OTHER  EXCEPTIONS.      §  262. 

RESTORATION  OF  THE  PREMISES  WHERE  THE  CONTRACT  IS 
VOID.  §  263. 

§  256.  GENERAL  PRINCIPLES.  The  next  cardinal  rule  which 
\ve  shall  consider  as  controlling  the  rights  of  the  parties,  when  the 
purchaser  seeks  to  avoid  the  contract  on  failure  of  the  title,  is  as 
follows : 

PROPOSITION  II.  A  purchaser  of  lands  in  undisturbed  posses- 
sion, cannot,  as  a  general  rule,  while  the  contract  is  executory, 
recover  back  the  purchase  money  on  failure  of  the  title,  or  resist 
the  payment  thereof,  without  restoring,  or  offering  to  restore  the 
premises  to  the  venddr,  and  placing  him  in  statu  quo.1 

M  Sugd.  Vend.  m.  p.  407,  472  (6th  Am.  ed.),  Nicolson  v.  Wadsworth,  2 
Swanst.  365 ;  Wickham  v.  Ernest,  4  Madd.  34 ;  Young  v.  Sincombs,  1  Younge, 
275;  Tindal  v.  Cobham,  2  Myl.  &  K.  385.  Cope  v.  Williams,  4  Ala.  362; 
Donaldson  v.  Waters,  30  Ala.  175;  Lett  v.  Brown,  56  Ala.  550;  Wade  v. 
Killough,  3  Stew.  &  P.  (Ala.)  431;  George  v.  Stockton,  1  Ala.  136;  Clemens 
v.  Loggins,  1  Ala.  622;  Stone  v.  Gover,  1  Ala.  287;  Tankersly  v.  Graham,  8 
Ala.  247;  Helvenstein  v.  Higgason,  35  Ala.  259;  Eads  v.  Murphy,  52  Ala.  520; 
Svoly  v.  Scott,  56  Ala.  555;  Union  Stave  Co.  v.  Smith,  116  Ala.  416;  22 
So.  Rep.  275.  Peay  v.  Capps,  27  Ark.  160.  Haynes  v.  White,  55  Cal.  39; 
Hicks  v.  Lovell,  64  Cal.  29;  49  Am.  Rep.  679;  27  Pnc.  Rep.  042;  Gates  v. 
McLean,  70  Cal.  42;  11  Pac.  Rep.  489;  Hannan  v.  McNickle,  82  Cal.  122;  23 
Pac.  Rep.  271;  Rhorer  v.  Bila,  83  Cal.  54;  23  Pac.  Rep.  274;  Worley  v.  North 
<>ott,  91  Cal.  512;  27  Pac.  Rep.  767.  Booth  v.  Saffold,  46  Ga.  278;  Cherry 
v.  Davis,  59  Ga.  454;  Summerall  v.  Graham,  62  Ga.  729;  Preston  v.  Walker, 
109  Ga.  290;  ?4  S.  E.  Rep.  571.  Martin  v.  Chambers,  84  111.  579;  Long  v. 
Saunders,  88  111.  187.  Osborn  v.  Dodd,  8  Bl.  (Ind.)  467;  Vright  v.  Biackley, 


616  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

This  proposition  is  founded  upon  the  plainest  principles  of 
equity.  The  purchaser  cannot  say  to  the  vendor  "  our  contract  is 
at  an  end,  but  I  shall  continue  to  occupy  the  premises  until  I  have 
no  further  use  for  them."2  If  the  rule  were  otherwise  the  pur- 
chaser might  retain  the  possession  until  the  Statute  of  Limitations 
should  bar  the  rights  of  the  adverse  claimant,  and  thus  acquire  the 
estate  without  paying  any  of  the  purchase  money.3  So  long  as  the 
purchaser  retains  possession  of  the  premises,  with  notice  of  ob- 
jection to  the  title,  he  is  looked  upon  as  waiving  the  right  to  re- 
scind.4 Another  reason  why  the  purchaser  cannot  sue  to  recover 
back  purchase  money  while  he  is  in  possession  of  the  land  is,  that 
such  a  suit  is  a  disaffirmance  of  the  contract,  and  he  cannot  dis- 
affirm the  contract  and  at  the  same  time  have  its  benefit  by  retain- 
ing the  possession.5  And  when  the  vendee  is  sued  for  the  purchase 

3  Ind.  101;  Wiley  v.  Howard,  15  Ind.  169.  Dunn  v.  Mills  (Kan.),  79  Pac. 
Rep.  146,  502;  Reeve  v.  Downs,  22  Kan.  330.  Bodley  v.  McCord,  4  J.  J. 
Marsh.  (Ky.)  483;  Peebles  v.  Stephens,  3  Bibb  (Ky.),  324;  6  Am.  Dec.  660. 
Childs  T.  Lockett,  107  La.  270;  31  So.  Rep.  751.  Hill  v.  Samuel,  31  Miss.  307; 
Shipp  y.  Whelers,  33  Miss.  647.  Holladay  v.  Menefee,  30  Mo.  App.  207; 
Davis  v.  Watson,  89  Mo.  App.  15.  More  v.  Smedburg,  8  Paige  Ch.  (N.  Y.) 
600;  Gale  v.  Nixon,  6  Cow.  (N.  Y.)  445;  Lewis  v.  McMillan,  41  Barb.  (N.  Y.) 
420;  Wright  v.  Delafield,  23  Barb.  (N.  Y.)  498.  Tompkins  v.  Hyatt,  28 
N.  Y.  347.  Sayre  v.  Mohney  30  Oreg.  238;  47  Pac.  Rep.  197.  Garvin  v. 
Cohen,  13  Rich.  L.  (S.  C.)  153.  Kelly  v.  Kershaw  (Utah),  16  Pac.  Rep.  488. 
Florence  Oil  Co.  v.  McCandless,  26  Colo.  534;  58  Pac.  Rep.  1084.  Horton  v. 
Arnold,  18  Wis.  212,  where  buildings  on  the  premises  had  been  destroyed  by 
fire.  In  a  few  cases,  in  which  the  contract  had  not  been  executed  by  a  con- 
veyance, it  seems  to  have  been  held  that  the  purchaser  might  detain  the  pur- 
chase money  on  failure  of  the  title,  though  he  had  not  been  evicted  from  the 
premises  nor  had  surrendered  the  possession  to  the  vendor.  Lewis  v.  Mc- 
Millan, 31  Barb.  (N.  Y.)  395;  reversed  on  motion  for  new  trial,  41  Barb. 
(N.  Y.)  420.  In  Hood  v.  Huff,  2  Tread.  (S.  C.)  the  contract  had  been  exe- 
cuted. In  Feemster  v.  May,  13  Sm.  &  M.  (Miss.)  275;  53  Am.  Dec.  83,  and 
Wiggins  v.  McGimpsey,  13  Sm.  &  M.  (Miss.)  532,  the  purchaser  was  held 
entitled  to  detain  the  purchase  money,  though  he  was  undisturbed  in  the 
possession,  on  the  ground  that  the  contract  required  the  vendor  to  tender  a 
deed  conveying  a  good  title  before  the  purchaser  could  be  compelled  to  pay 
the  purchase  money.  See  ante,  §  253. 

*  More  v.  Smedburgh,  8  Paige   ( N.  Y. ) ,  600,  606. 

3  Congregation  v.  Miles,  4  Watts    (Pa.),  146. 

4 Bellamy  v.  Ragsdale,  14  B.  Mon.  (Ky.)  293.  Thompson  v.  Drellis,  5 
Rich.  Eq.  (S.  C.)  370.  Hale  v.  Wilkinson,  21  Grat.  (Va.)  75.  Rhorer  v. 
Bila,  83  Cal.  51.  Brumfield  v.  Palmer,  7  Bl.  (Ind.)  227. 

•Hurst  v.  Means,  2  Swan   (Tenn.),  594. 


OBLIGATION  OF  PUKCHASEB  TO  RESTORE  PREMISES  TO  VENDOR.      617 

money  at  law,  and  the  title  has  failed,  he  cannot,  even  under  a 
statute  allowing  the  interposition  of  equitable  defenses  in  actions 
at  law,  disaffirm  the  contract  in  part  by  detaining  a  part  of  the  pur- 
chase money,  and  at  the  same  time  insist  upon  a  conveyance  of  the 
lands.  He  must  make  his  election  between  his  right  to  have  a 
specific  performance  of  the  contract,  and  his  right  to  have  damages 
for  a  breach  thereof,  or  his  right  to  surrender  the  possession  and 
to  recover  back  so  much  of  the  purchase  money  as  he  may  have 
paid.6 

This  rule  is  also  an  excellent  practical  test  of  the  bona  fides  of 
the  purchaser  in  raising  objections  to  the  title  when  no  adverse 
claimant  is  threatening  his  possession.  If,  under  such  circum- 
stances, he  does  not  offer  to  restore  the  premises  to  the  vendor,  it 
will,  in  most  cases,  be  found  that  his  objections  are  nice  and  cap- 
tious and  have  been  searched  out  for  the  purpose  of  gaining  time, 
when  sued  for  the  purchase  money. 

But  while  the  purchaser  cannot  recover  back  the  purchase  money 
so  long  as  he  retains  the  possession  of  the  premises,  it  is  not  neces- 
sary that  he  be  evicted  by  an  adverse  claimant  before  he  can  assert 
that  right.  He  may,  at  any  time,  unless  he  has  waived  his  objec- 
tions to  the  title  or  unless  the  vendor  has  a  right  to  perfect  the 
title,  deliver  up  the  possession  to  the  vendor  and  demand  a  return 
of  the  purchase  money  paid,  or  defend  an  action  for  that  which 
remains  unpaid.7 

While  the  purchaser  cannot,  where  he  has  elected  to  rescind  the 
contract,  recover  back  the  purchase  money  without  restoring  the 
premises  to  the  vendor,  it  has  been  held,  as  we  have  seen,  that  he 
may  elect  to  affirm  the  contract,  keep  the  premises,  and  recover  the 
purchase  price  as  damages,  if  the  title  has  completely  failed.8  If 
this  decision  be  sound,  the  rule  that  the  purchaser  seeking  to  re- 
cover back  the  purchase  money  must  restore  the  premises  to  the 
vendor  is  of  slight  importance,  as  it  might  be  evaded  by  a  mere 
change  in  the  purchaser's  pleadings.  Of  course  these  observations 
do  not  apply  where  the  purchaser  seeks  to  detain  the  purchase 

•Watkins  v.  Hopkins,  13  Grat.  (Va.)  743;  Shiflett  v.  Orange  Humane 
Society,  7  Grat.  (Va.)  297. 

7  2  Sugd.  Vend.  (7th  Am.  ed.)  126,  note.  Timms  v.  Shannon,  19  Md.  296; 
81  Am.  Dec.  632. 

•Ante.  §  3.     Fletcher  v.  Button,  6  Barb.    (N.  Y.)    G4f». 


618  MAEKETABLE    TITLE    TO    SEAL    ESTATE. 

money  on  failure  of  the  title,  for  as  a  general  rule  the  purchaser 
can  maintain  no  action  for  inability  to  convey  a  good  title  unless 
he  has  paid  the  purchase  money  in  full.9 

If  the  purchaser  refuse  to  pay  the  purchase  money  on  the  ground 
that  the  title  is  bad,  and  at  the  same  time  refuse  to  restore  the 
premises,  he  is  liable  to  an  action  of  ejectment  by  the  vendor,  and 
may  be  evicted.10  And  the  fact  that  he  has  made  expensive  im- 
provements on  the  premises  will  not  justify  him  in  refusing  to 
give  up  the  possession.  He  should  not  be  encouraged  to  make  im- 
provements while  the  purchase  money  is  unpaid.11  But  it  has  been 
held  that  if  the  purchaser  in  possession  refuse  to  pay  the  purchase 
money  on  the  ground  that  the  title  is  defective,  and  the  vendor, 
without  notifying  the  purchaser  of  his  intention  to  rescind  the 
contract  resell  the  premises  to  a  third  party,  the  original  purchaser, 
if  sued  in  ejectment  by  the  subsequent  purchaser,  may  set  up  the 
failure  of  the  vendor's  title  as  a  defense,  if  the  case  be  one  in  which 
the  vendor  is  not  entitled  to  claim  the  purchase  money  already  paid 
as  forfeited,  or  in  which,  by  reason  of  moneys  expended  in  improve- 

•Ante,  §   1.     Clarke  v.  Locke,  11  Humph.   (Tenn.)   300. 

'•1  Sugd.  'Vend.  m.  p.  (14th  Eng.  ed.)  347.  Gates  v.  McLean,  70  Cal. 
42.  See  generally,  as  to  the  right  of  the  vendor  to  maintain  ejectment  againat 
a  purchaser  who  refuses  to  pay  the  purchase  money,  Jackson  v.  Moncrief,  5 
Wend.  (N.  Y.)  26.  Hawn  v.  Norris,  4  Binn.  (Pa.)  77;  Mitchell  v.  De  Roche, 
1  Yeates  (Pa.),  12.  Marlin  v.  Willink,  7  S.  &  R.  (Pa.)  297.  Browning  v. 
Estes,  3  Tex.  462;  49  Am.  Dec.  760.  Whiteman  v.  Castleburg,  8  Tex.  441; 
In  Harle  v.  McCoy,  7  J.  J.  Marsh,  (Ky.)  318;  23  Am.  Dec.  407,  it  was  said 
that  mere  non-payment  of  the  purchase  money  without  previous  notice  of  an 
intent  to  rescind,  would  not  justify  ejectment  against  the  purchaser.  The 
rule  in  this  respect  has  been  nowhere  more  clearly  or  succinctly  stated  than 
in  the  head  note  to  the  case  of  Worley  v.  Nethercott,  91  Cal.  512;  27  Pac. 
Rep.  767,  which  is  as  follows:  "A  purchaser  of  land  in  possession  thereof 
under  a  contract  of  sale,  by  the  terms  of  which  the  vendor  is  to  give  a 
warranty  deed  of  the  property,  conveying  a  good  and  perfect  title  thereto, 
cannot,  upon  the  vendor's  failure  and  inability  to  convey  a  good  and  perfect 
title,  retain  both  the  land  and  the  purchase  money  until  a  perfect  title  shall 
be  offered  him;  but  he  must  pay  the  purchase  price  according  to  the  contract 
and  receive  such  title  as  the  vendor  is  able  to  give,  if  he  chooses  to  retain 
the  possession  of  the  land,  or  he  may  rescind  the  contract,  restore  the  pos- 
session to  the  vendor  and  recover  the  purchase  money  paid,  together  with  the 
value  of  his  improvements,  after  deducting  therefrom  the  fair  rental  value 
of  the  premises;  and  if  he  fails  and  refuses  to  adopt  either  course,  he  is 
liable  to  an  action  of  ejectment  by  the  vendor. 

11  Cherry  v.  Davis,  59  Ga.  454.     Gates  v.  McLean,  70  Cal.  42. 


OBLIGATION  OF  PURCHASER  TO  RESTORE  PREMISES  TO  VENDOR.     619 

ments,  or  from  other  causes,  it  would  be  inequitable  to  deprive  the 
purchaser  of  the  possession.12  We  have  already  seen  that  the  pur- 
chaser cannot,  while  the  contract  is  executory,  get  in  an  outstanding 
title  and  set  up  the  same  against  the  vendor  when  sued  for  the 
purchase  money  or  the  possession.  He  must  surrender  the  posses- 
sion before  he  will  be  permitted  to  litigate  or  dispute  the  vendor's 
title.13 

The  mere  failure  of  the  vendor  to  convey,  for  want  of  title,  at 
the  time  stipulated  by  the  contract,  is  not  such  a  rescission  of  the 
contract  as  will  justify  the  purchaser  in  detaining  the  purchase 
money  without  giving  up  the  possession  of  the  premises.  An  agree- 
ment to  convey  within  a  reasonable  time  after  the  sale  is  not  a  con- 
dition precedent  to  the  right  of  the  vendor  to  maintain  an  action 
on  a  bond  for  the  purchase  money  payable  at  a  day  certain.14 

§  257.  VENDOR  MUST  BE  PLACED  IN  STATU  QUO.  The  pur- 
chaser must  not  only  restore  the  premises  to  the  vendor  as  a  con- 
dition precedent  to  rescission,  but  he  must  return  them  in  as  good 
condition  as  they  were  when  received.  The  vendor  has  a  right  to 
demand  that  he  be  placed  in  the  same  condition  in  which  he  was, 
with  respect  to  the  premises,  before  the  contract  was  made.15  But 
it  has  been  held  that  if  a  state  of  affairs  making  it  impossible  to 
place  the  vendor  in  statu  quo  has  been  produced  by  his  sole  act 
without  the  concurrence,  in  deed  or  will,  of  the  purchaser,  the  rule 
does  not  apply.16  As  a  consequence  of  this  rule  the  purchaser  can- 
not recover  back  or  detain  the  purchase  money  without  accounting 
for  the  use  and  occupation  of  the  land,  unless  he  is  liable  to  account 
to  the  true  owner  for  the  rents  and  profits.1*  In  a  case  of  an  exe- 

13  Estell  v.  Cole,  52  Tex.  170. 

13  Ante,  §§  202,  219.     Isler  v.  Eggers,  17  Mo.  332;  Harvey  v.  Morris,  63  Mo. 
475;  Pershing  v.  Canfield,  70  Mo.  140. 

14  Stone  v.  Cover,  1  Ala.  287. 

"Post,  eh.  30,  §  279.  Guttschlick  v.  Bank,  5  Cranch  (C.  C.  U.  S.),  435. 
In  Concord  Bank  v.  Gregg,  14  N.  H.  331,  a  mill  on  the  purchased  premises 
wag  destroyed  after  it  had  been  conveyed  to  the  purchaser,  but  the  loss  hav- 
ing occurred  without  fault  on  his  part,  and  there  being  nothing  to  show  that 
the  loss  would  not  have  occurred  if  the  vendor  himself  had  been  in  possession, 
it  was  held  that  he  must  accept  a  reconveyance  of  the  premises.  The  contract 
had  been  rescinded  because  of  fraudulent  representations  by  the  vendor. 

18  Shackelford  v.  Handly,  1  A.  K.  Marsh.   (Ky.)   500;   10  Am.  Dec.  753. 

17  Collins  v.  Thayer,  74  111.   138;   Whitney  v.  Cochran,   1  Scam.    (111.)    209. 


620  MARKETABLE    TITLE    TO    REAL    ESTATE. 

euted  contract,  as  lias  been  seen,18  the  rents  and  profits,  unless  re- 
coverable by  the  true  owner,  are  set  off  against  the  covenantee's 
demand  for  interest  on  the  purchase  money.  In  England  it  has 
been  held  that  if  possession  of  the  land  was  delivered  to  the  pur- 
chaser the  vendor  could  not  be  put  in  statu  quo  by  restoring  the 
premises  to  him,19  but  this  doctrine  seems  to  have  gained  no  foot- 
hold in  America,  where  th,e  right  to  rescind  has  generally  been 
allowed  on  failure  of  the  title,  notwithstanding  delivery  of  pos- 
session to  the  vendee.20  If,  instead  of  seeking  to  rescind  the  con- 
tract by  recovering  back  the  purchase  money,  the  purchaser  affirm 
it  by  maintaining  an  action  to  recover  damages  for  the  vendor's 
fraud  in  imposing  a  worthless  title  upon  him,  the  purchaser  may 
recover  without  surrendering  or  offer  to  surrender  the  premises.21 
If,  in  such  case,  he  had  paid  the  purchase  money,  the  measure  of 
his  damages  would  be  the  difference  between  the  value  of  the  prem- 
ises with  a  good  title  and  their  value  as  the  title  actually  was. 

The  purchaser,  of  course,  cannot  recover  back  or  detain  the  pur- 
chase money  if  he  has  disabled  himself  from  placing  his  vendor  in 
statu  quo  by  conveying  away  the  premises  to  a  stranger.22 

§  258.  RESTORATION  OF  PREMISES  A  CONDITION  PRECE- 
DENT TO  RESCISSION.  It  has  been  held  that  a  purchaser  of 
lands  seeking  rescission  of  the  contract  at  law  by  recovering  back 
the  purchase  money,  must  restore  or  offer  to  restore  whatever  he 
has  received  on  account  of  the  contract  as  a  condition  precedent  to 
the  maintenance  of  the  action.23  "  In  equity,"  the  court  observed 
in  the  same  case,  "  a  different  rule  prevails,  as  the  action  at  law 
proceeds  upon  a  rescission  of  the  contract,  while  in  equity  the  action 

"Ante,  §  172. 

"Hunt  v.  Silk,  5  East,  449.     Blackburn  v.  Smith,  2  Exch.  783. 

^Taft  v.  Kessel,  16  Wis.  278. 

21  Stockham  v.  Cheney,  62  Mich.   10. 

2JRodgers  v.  Olshoffsky,  110  Pa.  St.  147;  2  Atl.  Rep.  44;  McKeen  v.  Beaup- 
land,  33  Pa.  St.  488.  Strong  v.  Lord,  107  111.  26.  Where  the  purchaser's  note 
contained  an  indorsement  that  it  was  not  to  be  paid  unless  the  title  proved  to 
be  good,  and  the  purchaser  resisted  payment  on  the  ground  that  the  title  to  a 
part  of  the  land  had  failed,  but  did  not  seek  to  rescind  the  contract,  it  was 
held  that  he  could  not  be  compelled  to  pay  the  note  until  the  title  should  be 
made  good,  though  he  had  conveyed  away  a  part  of  the  land.  Smeich  v. 
Herbst,  135  Pa.  St.  539;  19  Atl.  Rep.  950. 

33  Johnson  v.  Burnside,   (S.  D.)   52  N.  W.  Rep.  1057. 


OBLIGATION  OF  PURCHASES  TO  RESTORE  PREMISES  TO  VENDOR.     621 

proceeds  for  a  rescission  of  the  contract."  Elsewhere,  under 
statutes  allowing  courts  of  law  to  administer  equitable  relief,  it 
was  held  that  the  judgment,  where  the  purchaser  seeks  to  detain 
the  purchase  money,  could  be  so  framed  as  to  require  the  purchaser 
to  surrender  the  land  before  he  can  have  the  benefit  of  the  ver- 
dict.24 Where,  however,  courts  of  law  have  no  jurisdiction  to 
direct  a  surrender  of  the  premises  before  the  judgment  or  verdict 
shall  become  operative,  it  is  apprehended  that  the  purchaser's 
action  or  defense,  as  the  case  may  be,  must  fail,  unless  he  shows 
that  he  has  surrendered  or  offered  to  surrender  the  premises  to  the 
vendor.25 

§  259.  RULE  IN  PENNSYLVANIA.  In  Pennsylvania  the  rule 
that  the  purchaser  cannot  keep  both  the  estate  and  the  price  of  it 
is  declared,  but  instead  of  requiring  the  purchaser  to  surrender  the 
estate  as  a  condition  precedent  to  the  maintenance  of  an  action  to 
recover  back  the  purchase  money,  it  is  there  held  that  the  vendor 
must  take  the  initiative,  and  return  the  purchase  money  if  he  finds 
that  he  cannot  make  title,  and  then,  if  the  purchaser  refuses  to  give 
up  the  possession,  turn  him  out  by  action  of  ejectment.26  The  ap- 

"Sizemore  v.  Pinkston,  51  Ga.  398.  In  Taft  v.  Kessel,  16  Wis.  297,  it  was 
said :  "  There  seems  to  be  no  objection  to  a  rule  allowing  a  purchaser,  brought 
into  court  as  a  defendant,  to  claim  a  rescission  and  a  recovery  of  the  pur- 
chase^ money  paid,  without  a  previous  surrender  of  the  possession,  leaving  the 
matter  to  be  disposed  of  by  the  judgment,  which  can  be  so  framed  as  to 
adjust  the  rights  of  both  parties  upon  equitable  terms."  This  was  an 
"  action "  to  enforce  a  contract  for  the  sale  of  lands  ( practically  a  suit  in 
equity),  but  it  is  believed  that  the  above  observations  of  the  court  apply  with 
equal  force  in  an  action  at  law  by  or  against  the  purchaser  in  which  he 
seeks  rescission  of  the  contract. 

K  Young  v.  Harris,  2  Ala.  (N.  S.)  108.  In  an  action  to  recover  back  the 
purchase  money  on  failure  of  the  title,  if  the  evidence  does  not  show  who  is 
in  possession,  the  court,  on  appeal,  will  presume  that  the  purchaser  sur- 
rendered the  possession  before  bringing  the  action.  Pino  v.  Beckwith,  1  N. 
Mex.  19. 

=*In  Cans  v.  Renshaw,  2  Pa.  St.  34;  44  Am.  Dec.  152,  it  was  held  that  a 
purchaser,  by  articles  of  agreement,  was  not  bound  to  restore  the  possession 
to  the  vendor  and  give  up  the  contract  before  he  could  make  objections  to  the 
title  in  an  action  brought  for  the  purchase  money.  A  tender  of  a  conveyance 
with  warranty  against  incumbrances  had  been  rejected  by  the  purchaser  on 
the  ground  that  the  premises  were  incumbered  by  certain  liens,  and  the  ven- 
dor brought  an  action  for  the  purchase  money.  The  opinion  of  the  court  was 
delivered  by  GIBSON,  C.  J.,  who  said:  "It  is  said  it  was  his  (the  pur- 
chaser's) duty,  if  the  title  was  not  such  as  he  bargained  for,  to  give  back 


622  MARKETABLE  TITLE  TO  EEAL  ESTATE. 

plication  of  this  doctrine  in  an  action  in  which  the  purchaser  seeks 
either  to  recover  back  the  purchase  money  or  to  detain  that  which 
is  unpaid,  would  seem  to  be  fraught  with  injustice  to  the  vendor, 
for  he  would  be  thereby  forced  to  the  expense  and  annoyance  of  an- 
other and  independent  action  to  do  that  which  might  be  accom- 
plished in  one.  It  has  been  held  in  the  same  State,  in  several  case?, 
that  the  purchaser  cannot,  on  failure  of  the  title,  recover  back  the 
purchase  money  without  offering  to  return  the  premises  to  the 
vendor.27 

§  260.  RESTORATION  OF  THE  PREMISES  IN  CASES  OF  FRAUD 
The  mere  fact  that  the  vendor  was  guilty  of  fraud  in  respect  to  the 
title  would  not,  it  seems,  justify  the  purchaser  in  retaining  both  the 
land  and  the  purchase  money.28  There  are  cases  which,  at  the  first 

the  possession  and  declare  his  determination  to  abandon  the  contract.  And 
for  not  having  done  so  he  is  to  pay  a  sound  price  for  an  unsound  title! 
*  *  But  whose  business  was  it  to  move  towards  a  rescission  of  the  con- 
tract? Not  the  defendant's.  He  was  at  liberty  to  fold  his  arms  and  await 
the  movements  of  the  plaintiff,  whose  cue  it  was  to  take  the  next  step  towards 
an  abandonment  or  a  completion  of  the  purchase.  It  was  not  for  the  defend- 
ant to  know  what  title  the  plaintiff  should  be  able  to  make  when  he  should 
come  to  tender  the  conveyance.  The  plaintiff's  power  to  perform  his  part 
was  best  known  to  himself,  and  if  he  found  the  defect  in  his  title  to  be  irre- 
parable what  was  he  to  do?  Certainly,  not  to  bring  an  action  for  the  pur- 
chase money  in  order  to  force  a  rotten  title  on  the  purchaser  for  a  good  one, 
and  this  on  the  basis  of  his  own  default.  It  would  be  his  duty  to  apprise 
the  vendee  of  his  inability,  restore  whatever  had  been  paid,  and  demand  the 
possession.  In  that  case  equity  would  not  enjoin  him  from  proceeding  on  his 
legal  title  to  get  back  the  property,  but  not  to  compel  the  vendee  to  pay  for 
what  he  did  not  get."  See,  also,  Xicoll  v.  Carr,  35  Pa.  St.  381. 

17 Morrow  v.  Rees,  69  Pa.  St.  368;  Pearsoll  v.  Chapin,  8  Wright  (Pa.),  9; 
Babcock  v.  Case,  61  Pa.  St.  427;  100  Am.  Rep.  654;  Wright  v.  Wright,  12 
Pa.  Co.  Ct.  Rep.  238. 

"Wimberg  v.  Schwegeman,  97  Ind.  528;  Vance  v.  Shroyer,  79  Ind.  380; 
Wiley  v.  Howard,  15  Ind.  169.  Vining  v.  Leeman,  45  111.  246;  Whitlock  v. 
Denlinger,  59  111.  96:  Laforge  v.  Matthews,  68  111.  328.  Fratt  v.  Fiske,  7 
Cal.  380.  Lett  v.  Brown,  56  Ala.  550.  Brannum  v.  Ellison.  5  Jones  Eq.  (N. 
C.)  435.  Staley  v.  Ivory,  65  Mo.  74.  Linsey  v.  Ferguson,  3  Lans.  (N.  Y.) 
196.  Underwood  v.  Parker,  (Ky.)  7  S.  W.  Rep.  626.  Goodin  v.  Decker, 
(Colo.)  32  Pac.  Rep.  832.  2  Warvelle  Vend.  919.  In  Pearsall  v.  Chapin,  44 
Pa.  St.  9,  the  court  below  instructed  the  jury  that  in  a  case  of  fraudulent 
representations  the  vendor  had  a  right  to  recover  back  the  price  without  first 
tendering  a  reconveyance.  This  was  reversed  on  appeal,  the  court  saying: 
"  If  the  court  has  stated  this  point  correctly  a  defrauded  vendee  may  recover 
back  the  price  without  rescinding  the  contract,  and  while  retaining  the  price 
acquired  by  it,  and,  perhaps,  without  liability  to  return  it,  since  the  vendor 


OBLIGATION  OF  PUBCHASEE  TO  EESTOBE  PBEMISES  TO  VENDOB.     623 

glance,  might  appear  to  countenance  such  a  doctrine,  but  upon 
closer  examination  it  will  be  found  that  they  establish  nothing  be- 
yond the  proposition  that  the  purchaser  is  not  obliged  to  surrender 
the  possession,  where  the  title  fails,  as  a  condition  precedent  to  the 
rescission  of  the  contract  At  law  it  seems  that  he  would  be  com- 
pelled to  give  up,  or  to  offer  to  give  up,  the  possession  before  trial, 
even  where  the  vendor  has  been  guilty  of  fraud,  except  in  those 
States  in  which  courts  of  law  have  the  power  to  enter  judgment  for 
the  purchaser,  conditioned  upon  his  delivery  of  the  premises  to 
the  vendor.29 

But  the  rule  that  the  purchaser  electing  to  rescind  the  contract 
must  restore  the  possession  to  the  vendor,  even  in  a  case  of  fraud, 
does  not  apply  where  the  purchaser  is  already  in  possession  under  a 
prior  purchase,  and  is  induced  to  take  a  quit  claim  from  a  third 
person  who  fraudulently  represents  that  he  has  title  to  the  premises. 
In  such  a  case  the  purchaser  may  refuse  to  pay  a  note  given  in  con- 
sideration of  the  quit  claim  without  surrendering  the  premises  to 

cannot  allege  his  own  fraud  in  order  to  reclaim  it;  he  may  rescind  for  what 
he  gave  and  affirm  for  what  he  got,  and  thus  is  allowed  by  law  to  return 
injustice  by  fraud,  and  invited  to  learn  the  art  of  being  duped  as  a  mode  of 
profitale  speculation.  We  do  not  so  understand  the  law."  In  an  action  to 
recover  back  the  purchase  money  on  the  ground  of  fraud,  the  purchaser  must 
show  an  actual  rescission  by  him,  notice  thereof  to  the  vendor,  and,  as  a 
general  rule,  an  offer  to  put  the  vendor  in  statu  quo  by  returning  the  prop- 
erty, unless  it  is  utterly  worthless.  Morrow  v.  Rees,  69  Pa.  St.  372. 

M  Coffee  v.  Xewson,  2  Kelly  (Ga.),  442.  Taft  v.  Kessel,  16  Wis.  297. 
Young  v.  Harris.  2  Ala.  (N.  S.)  108,  where  it  was  said:  "The  decisions  of 
this  court  are  uniform,  when  the  question  has  arisen  at  law,  that  the  vendee, 
while  he  retains  the  possession,  cannot  refuse  to  pay  the  purchase  money; 
otherwise,  it  might  happen  that  he  would  get  the  land  without  paying  for  it, 
as  a  court  of  law  could  exact  no  condition  from  him  as  the  price  of  afford- 
ing its  aid.  But  in  a  court  of  chancery,  where  the  rights  of  the  parties  can 
be  accurately  adjusted,  no  reason  is  perceived  why  the  vendee,  who  has  been 
induced  by  the  fraudulent  representations  of  the  vendor,  to  invest  his  money 
in  the  purchase  of  land,  should  be  required,  as  a  prerequisite  to  relief  in 
equity,  to  relinquish  possession  of  the  land,  and  with  it,  it  may  be,  his  only 
hope  of  reimbursing  himself.  This  point  has  not  before  been  presented  to 
this  court,  but  we  hesitate  not  to  say  that  when  one,  by  the  fraudulent 
silence  or  fraudulent  representations  of  another  in  relation  to  material  facts 
concerning  the  title  of  land,  the  falsehood  of  which  he  had  not  the  means  of 
ascertaining  and  could  not  have  ascertained  by  reasonable  diligence,  is  in- 
duced to  invest  his  money  in  the  purchase  of  land,  or  has  made  on  the  faith 
of  such  purchase,  valuable  and  lasting  improvements,  he  can  have  relief  in 


624  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

the  payee.30  The  rule  that  the  purchaser  cannot  deny  the  vendor's 
title  has  no  application  where  the  purchaser  is  already  in  possession 
when  the  contract  is  made,  and  the  vendor  has  fraudulently  mis- 
represented or  concealed  the  state  of  the  title.31 

If  the  vendor  fraudulently  misrepresent  the  state  of  his  title,  it 
is  not  necessary  that  the  purchaser  shall  return  a  title  bond  exe- 
cuted by  the  vendor  before  he  can  be  permitted  to  rescind.  He  may 
rely  upon  such  misrepresentations  as  a  defense  to  an  action  for  the 
purchase  money  without  returning  the  bond.32 

|  261.  WHEN  PURCHASES,  NEED  NOT  RESTORE  THE  PREM- 
ISES. PURCHASER'S  LIEN.  The  purchaser  is  not  obliged  to  re- 
turn the  premises  before  suing  to  recover  back  the  purchase  money 
if  the  vendor  refuse  to  receive  them.33  Kor  does  any  such  obliga- 
tion rest  upon  him  if,  through  mistake  or  fraud  on  the  part  of  the 
vendor,  he  purchased  his  own  property.34  The  most  important 
exception  to  the  rule,  however,  and  one  which  has  been  recognized 
in  several  of  the  States,  is  that  the  purchaser  need  not  restore  the 
premises  if  it  is  necessary  for  him  to  retain  them  for  his  indemnity, 
where  the  vendor  is  insolvent  or  cannot  be  compelled  to  respond  in 

chancery  before  an  eviction  and  without  an  abandonment  of  the  possession." 
See,  also,  Whitworth  v.  Stuckey,  1  Rich.  Eq.  (S.  C.)  408.  1  Sugd.  Vend.  m. 
p.  247.  In  Greenlee  v.  Gaines,  13  Ala.  198;  48  Am.  Dec.  49,  it  was  held  that 
the  purchaser  need  not  surrender  the  possession  if  the  fraudulent  vendor  were 
insolvent,  and  the  detention  of  the  premises  was  necssary  for  his  (the  pur- 
chaser's) indemnity. 

••Watson  v.  Kemp,  41  Ga.  586. 

"Hammers  v.  Hannick,  99  Tex.  412;  7  S.  W.  Rep.  345,  citing  Taylor  Land- 
lord &  Tenant,  416,  514. 

«  Coburn  v.  Haley,  57  Me.  347 ;  Wyman  v.  Heald,  17  Me.  329. 

31  Johnson  v.  Burnside,  (S.  D.)  52  N.  W.  Rep.  1057.  Elliott  v.  Boaz,  9  Ala. 
772;  Smith  v.  Robertson,  23  Ala.  324.  Culbertson  v.  Blanchard,  79  Tex.  486; 
15  S.  W.  Rep.  700. 

14 Phillips  v.  O'Neal,  87  Ga.  727;  13  S.  E.  Rep.  819.  "This,"  says  Mr. 
Washburn,  "  is  but  little  more  than  carrying  out  the  old  idea  of  a  use  raised 
in  favor  of  a  vendee  who  has  paid  the  purchase  money  of  an  estate.  And 
when  the  contract  is  executory  as  fast  as  the  purchase  money  is  paid  in,  it 
is  a  part  performance  of  such  contract,  and  to  that  extent  the  payment 
of  the  money,  in  equity,  transfers  to  the  purchaser  the  ownership  of  a  corre- 
sponding portion  of  the  estate.  *  *  *  The  mode  of  enforcing  such  liens  is 
by  a  bill  in  equity  to  have  satisfaction  of  the  debt  made,  and  to  that  end  the 
court  may  order  enough  of  the  land  to  be  sold  to  satisfy  the  lien.  But  it  can 
be  enforced  only  in  a  suit  or  proceeding  brought  for  the  purpose.  It  cannot 
be  reached  by  a  collateral  proceeding.  2  Washb.  Real  Prop.  93  (509). 


OBLIGATION  OF  PURCHASER  TO  RESTORE  PREMISES  TO  VENDOR.     625 

damages  for  his  breach  of  the  contract.85  In  such  case,  however,  the 
burden  devolves  on  the  purchaser  to  show  that  the  vendor  is  insol- 
vent or  unable  to  answer  in  damages.36  The  purchaser  will  not  be 
allowed  to  keep  the  premises  where  the  vendor,  although  a  non- 
resident and  unable  to  make  title,  is  fully  solvent,  and  was  a  non- 
resident at  the  time  the  contract  was  made,  and  has  remained  so 
ever  since.87 

As  against  the  vendor  and  those  claiming  under  him  with  notice, 
the  law  gives  the  purchaser  a  lien  on  the  purchased  premises  to 
secure  to  him  the  reimbursement  of  whatever  purchase  money  he 
may  have  paid,  in  case  the  title  fails.38  Of  course,  such  a  lien 
could  not  prevail  against  the  true  owner,39  and  it  is  obvious  that  if 
the  purchaser  were  liable  to  the  latter  for  rents  and  profits,  he 
could  derive  no  benefit  from  the  retention  of  the  premises.  There 
may  be  cases,  however,  in  which  no  such  liability  exists,  as  where 

*  Duncan  v.  Jeter,  5  Ala.  604;  39  Am.  Dec.  342;  Read  v.  Walker,  18  Ala. 
323;  Garner  v.  Leaverett,  32  Ala.  410;  Hickson  v.  Linggold,  47  Ala.  449; 
Griggs  v.  Woodruff,  14  Ala.  9;  Elliott  v.  Boaz,  6  Ala.  777.  McLaren  v. 
Irvin,  63  Ga.  275.  Taft  v.  Kessel,  16  Wis.  273;  Mclndoe  v.  Morman,  26 
Wis.  588;  7  Am.  Rep.  96.  Payne  v.  Atterbury,  1  Harr.  Ch.  (Mich.)  414. 
Wickman  v.  Robinson,  14  Wis.  493;  80  Am.  Dec.  789.  Davis  v.  Heard,  44 
Miss.  50.  Bibb  v.  Prather,  1  Bibb  (Ky.),  313;  2  Am.  Dec.  711.  Shirley  r. 
Shirley,  7  Bl.  (Ind.)  452.  COLCOCK,  J.,  in  Rutledge  v.  Smith,  1  McCord  Ch. 
(S.  C.)  402. 

M  Wyatt  v.  Garlington,  56  Ala.  576. 

"Parks  v.  Brooks,  16  Ala.  529. 

W2  Sugd.  Vend.  (14th  ed.)  672;  2  Warvelle  Vend.  884;  2  Story  Eq.  Jur. 
5  1218,  n.  See,  also,  cases  cited,  supra,  this  chapter.  Taft  v.  Kessel,  16  Wis. 
273.  Newman  v.  Maclin,  5  Hayw.  (Tenn.),  241;  Perkins  v.  Hadley,  4  Hayw. 
(Tenn.)  148;  Pilcher  v.  Smith,  2  Head  (Tenn.),  208;  Hilton  v.  Duncan,  1 
Cold.  (Tenn.)  316,  320.  Benson  v.  Shotwell,  87  Cal.  49;  25  Pac.  Rep.  249. 
Galbraith  v.  Reeves,  82  Tex.  357;  18  S.  W.  Rep.  696.  Coleman  v.  Floyd, 
(Ind.)  31  N.  E.  Rep.  75.  Griffith  v.  Depew,  3  A.  K.  Marsh.  (Ky^  177;  13 
Am.  Dec.  141.  Bullitt  v.  Eastern  Ky.  L.  Co.,  99  Ky.  324;  36  S.  W7Rep.  16; 
Fort  Jefferson  Imp.  Co.  v.  Dupeyster,  (Ky.)  66  S.  W.  Rep.  1048;  Craft  v. 
La  Tourette,  62  N.  J.  Eq.  206;  49  Atl.  Rep.  711. 

"Thus,  in  McWilliams  v.  Jenkins,  72  Ala.  480,  it  was  held  that  the  pur- 
chaser's lien  could  only  extend  to  such  lands,  or  portions  thereof,  as  the  ven- 
dor had  the  legal  right  to  convey,  and  that,  having  no  right  to  convey  his 
homestead  lands,  the  purchaser  could  have  no  lien  thereon,  as  against  the 
claim  of  the  vendor's  children,  for  the  rents  while  the  purchaser  was  in  pos- 
session. And  in  Scott  v.  Battle,  84  N.  C.  184,  a  purchaser,  whose  deed  was 
void  because  executed  by  a  married  woman  alone  and  without  privy  examina- 
tion, was  denied  a  lien  upon  the  land  for  the  purchase  money  paid. 

40 


626  MAEKETABLE    TITLE    TO    REAL    ESTATE. 

the  vendor,  selling  a  fee,  had  only  a  life  estate.  In  such  a  case,  the 
purchaser  would  be  permitted  to  enjoy  the  life  estate  until  he  is 
fully  reimbursed  the  purchase  money  paid  and  sums  expended  in 
permanent  improvements.  The  purchaser  will  not  be  entitled-  to  a 
lien,  as  against  a  subsequent  bona  fide  purchaser,  without  notice  of 
his  rights.40  But,  as  against  a  subsequent  purchaser  with  notice, 
his  lien  will  be  enforced.41  The  purchaser's  lien  will,  after  a  time 
given  the  vendor  for  repayment  has  expired,  be  enforced  by  sale 
of  the  land.42  If  the  purchaser  be  able  to  follow  and  identify  the 
purchase  money  paid  by  him,  he  may  impress  it  with  a  trust.43 
But  it  seems,  that  the  purchaser  has  no  lien  on  the  purchase  money 
after  it  has  been  appropriated  by  the  vendor,  even  though  the 
latter  fraudulently  concealed  the  state  of  the  title.44  Nor,  will  he 
be  allowed  a  lien  on  the  land  as  against  subsequent  judgment 
creditors  of  the  vendor;  his  contract  not  having  been  recorded,  as 
required  by  statute  to  charge  subsequent  purchasers  and  creditors 
with  notice.45 

The  purchaser  is  also  entitled  to  the  value  of  any  improvements 
placed  by  him  on  the  premises,  less  the  fair  rental  of  the  property 
while  in  his  possession.46 

§  262.  OTHER  EXCEPTIONS.  The  rule  that  the  purchaser  can- 
not detain  the  purchase  money  without  restoring  the  possession,  of 
course  does  not  apply  where  the  title  fails  to  part  of  the  premises 
only,  and  the  purchaser  does  not  seek  a  rescission  but  elects  to  take 
suck  title  as  the  vendor  can  make,  with  abatement  of  the  purchase 
money  as  to  that  part  to  which  the  title  has  failed.47 

44  Chase  v.  Peck,  21  N.  Y.  581,  585,  dictum. 

"Clark  v.  Jacobs,  56  How.  Pr.    (N.  Y.)   519. 

*»  Jett  v.  Locke,  5  J.  J.  Marsh.   (Ky.)  591. 

43  Ross  v.  Davis,  122  N.  C.  265;  29  S.  E.  Rep.  338. 

"2  Sugd.  Vend.   (8th  Am.  ed.)   200. 

48  Newberry  v.  French,  98  Va.  479-;  36  S.  E.  Rep.  519. 

"Florence  Oil  Co.  v.  McCandless,  26  Colo.  534;   58  Pac.  Rep.  1084. 

"Walker  v.  Johnson,  13  Ark.  522;  Wheat  v.  Dotson,  7  Eng.  (Ark.)  699. 
Smeech  v.  Herbert,  135  Pa.  St.  539;  19  Atl.  Rep.  950.  Compare  Lewis  v. 
McMillan,  31  Barb.  (N.  Y.)  395;  41  Barb.  (N.  Y.)  420.  A  representation 
by  the  vendor  that  the  purchaser  would  have  the  privilege  of  building  to  a 
brick  wall  on  the  adjoining  lot  of  a  third  person,  is  not  one  which  affects  the 
title  to  the  lot  sold;  hence  the  purchaser  may,  without  restoring  the  lot  to 
the  vendor,  set  up  the  non-existence  of  the  easement  as  a  defense,  pro  tanto, 
to  an  action  for  the  purchase  money.  Noojin  v.  Carson,  124  Ala.  458;  27 
So.  Rep.  490. 


OBLIGATION  OF  PUBCHASEB  TO  BESTOEE  PREMISES  TO  VENDOE.     627 

It  sometimes  happens  that  the  purchaser  in  good  faith  seeks  to 
detain  the  purchase  money  without  intending  or  desiring  to  rescind 
or  abandon  the  contract,  and  with  no  intent  to  avail  himself  of 
the  want  of  title  as  a  mere  excuse  for  detaining  both  the  purchase 
money  and  the  possession  of  the  premises,  as  where  suit  against 
the  purchaser  has  been  begun  or  threatened  by  an  adverse  claim- 
ant: In  such  case  it  seems  that  the  purchaser,  anxious  to  preserve 
his  bargain,  may  detain  both  the  premises  and  the  unpaid  pur- 
chase money,  the  contract  being  executory,  until  the  rights  of  the 
adverse  claimant  can  be  determined.  Thus,  where  the  purchaser, 
a  woman,  was  sued  for  a  balance  of  the  purchase  money  and  she 
filed  an  answer  alleging  that  she  had  been  sued  in  trespass  by  an 
adverse  claimant  of  the  land,  whose  title  she  was  informed  and 
believed  was  paramount  to  that  of  her  vendor,  and  prayed  that 
the  vendor's  suit  against  her  might  be  stayed  until  the  trespass 
suit  was  determined,  it  was  held  that  the  answer  presented  a  good 
defense,  though  there  was  no  offer  to  restore  the  premises  to  the 
vendor.48 

It  has  been  held  that  a  purchaser  in  possession  of  the  premises 
resisting  the  payment  of  the  purchase  money  on  the  ground  that 
the  title  is  bad,  must  show  affirmatively  the  existence  of  a  para- 
mount title  in  a  third  person  in  order  to  sustain  that  defense.49 
It  might,  perhaps,  be  inferred  from  these  cases  that  if  the  pur- 
chaser were  able  to  establish  the  existence  of  the  paramount  title, 
he  might  detain  the  purchase  money  without  surrendering  the 
possession  of  the  premises.  If  such  be  the  effect  of  these  decisions, 
they  are  opposed  to  the  current  of  authority  in  England  and 
America.  It  is  true  that  it  has  been  held  that  a  purchaser  in 
possession  under  an  executory  contract  cannot  enjoin  the  collection 

"Gober  v.  Hart,  36  Tex.  139,  the  court  saying:  "  In  this  case  the  appellant 
purchased  the  land  and  paid  a  large  proportion  of  the  purchase  money,  and 
went  into  possession  of  the  purchased  premises;  and  she  had  a  right  to  retain 
the  same  as  against  her  vendors  until  a  tender  of  a  good  and  valid  title ;  and 
in  order  to  make  her  defense  a  good  one  she  was  not  bound  to  make  an  offer 
to  restore  possession,  as  she  did  not  seek  to  rescind  the  contract  of  sale,  but 
sought  to  have  it  perfected  in  good  faith,  according  to  the  contract  of  sale 
and  purchase.  She  does  not  resist  the  payment  of  the  note,  but  only  asks  that 
the  enforcement  of  the  payment  be  stayed  until  appellees  can  make  her  a  good 
title;  and  this  she  had  a  right  to  ask,  and  it  should  have  been  granted  her." 

"Cantrell  v.  Mobb,  43  Ga.  193;  Sawyer  v.  Sledge,  55  Ga.  152.  In  both 
cases  the  contract  was  executory. 


628  MAEKETABLE    TITLE    TO    EEAL    ESTATE. 

of  the  purchase  money  merely  because  the  vendor  has  no  title,  or 
a  defective  title,50  unless  the  vendor  has  been  guilty  of  fraud,51  or 
is  insolvent  and  unable  to  respond  in  damages  for  breach  of  the 
contract.52  But  these  cases,  it  is  to  be  observed,  do  not  militate 
against  the  right  of  the  purchaser  to  rescind  the  contract  and  re- 
cover back  the  purchase  money,  as  a  general  rule,  if  the  title  is  bad 
or  unmarketable.  They  merely  deny  his  right  to  do  either  so  long 
as  he  remains  in  the  undisturbed  possession  and  enjoyment  of  the 
premises.  There  are  cases,  however,  which  deny  the  right  of  the 
purchaser  to  deliver  up  the  possession  and  recover  back  or  detain 
the  purchase  money  where  the  title  is  bad  or  doubtful,  unless  the 
vendor  is  insolvent.53  It  seems  impossible  to  reconcile  such  de- 
cisions with  the  rule  that  a  purchaser  cannot  be  required  to  take 
a  doubtful  title,  or  one  that  will  probably  involve  him  in  litigation. 
§  263.  RESTORATION  OF  THE  PREMISES  WHERE  THE  CON- 
TRACT IS  VOID.  In  some  cases  it  has  been  held  that  if  the  con- 
tract for  the  sale  of  the  land  was  void,  e.  g.f  within  the  Statute 
of  Frauds,  the  purchaser  might  recover  back  his  purchase  money 
without  surrendering  the  possession  of  the  land  to  the  vendor,  the 
reason  assigned  being  that  there  is  no  contract  to  rescind.54  Such 

"  Blanks  v.  Walker,  54  Ala.  117. 

"Id.  Young  v.  Harris,  2  Ala.  108;  Elliott  v.  Boaz,  9  Ala.  772;  Bonham  T. 
Walton,  24  Ala.  514. 

"Kelly  v.  Allen,  34  Ala.  663;  Magee  v.  McMillan,  30  Ala.  420;  McLemore 
v.  Mabson,  20  Ala.  137. 

**  Hancock  v.  Cloud,  65  Ga.  208.  This  was  an  action  to  recover  the  pur- 
chase money  of  land,  the  contract  being  still  executory.  The  purchaser  had 
bought  from  one  who  had  purchased  at  his  own  sale  as  administrator,  and 
finding  the  title  doubtful  for  that  reason,  had  offered  to  pay  the  purchase 
money  if  the  heirs  would  ratify  the  sale,  and,  in  default  of  such  ratification, 
to  rescind  and  give  up  the  possession;  and  his  plea  showed  these  facts.  The 
plea  was  stricken  out,  and  the  purchaser  was  required  to  perform  the  contract 
on  the  ground  that  it  did  not  appear  that  the  sureties  on  the  administrator's 
bond  were  insolvent  or  that  the  purchaser  had  been  or  ever  would  be  dis- 
turbed in  the  possession  of  the  land.  Plainly  the  effect  of  such  a  decision 
might  be  to  compel  the  purchaser  to  buy  a  lawsuit. 

64  Barickman  v.  Kuykendall,  6  Bl.  (Ind.)  21.  McCracken  v.  San  Francisco, 
16  Cal.  591,  628.  COPE,  J.,  dissenting.  Hurst  v.  Means,  2  Swan  (Tenn.), 
594.  In  Wiley  v.  White,  3  Stew.  &  Port.  (Ala.)  355,  it  was  held  that  if  a 
sale  was  void  for  want  of  authority  in  the  seller,  the  purchase  money  might 
be  recovered  back  by  the  purchaser  without  surrendering  the  possession.  The 
contract,  however,  had  been  executed  in  this  case  by  a  conveyance,  but 


OBLIGATION  OF  PUBCHASEE  TO  EESTOEE  PEEMISES  TO  VENDOB.     629 

a  reason  is  eminently  unsatisfactory.  It  is  difficult  to  perceive 
how  the  purchaser  can  have  any  greater  rights  under  an  illegal 
contract  .than  he  could  have  under  one  that  is  lawful  and  valid,  or 
why  the  non-existence  of  a  contract  should  entitle  him  to  hold 
both  the  land  and  the  purchase  money.  Neither  does  it  seem  that 
there  is  any  right  or  justice  in  forcing  the  vendor  to  the  expense 
and  vexation  of  an  action  of  ejectment  or  unlawful  detainer  to 
regain  possession  of  the  premises,  when  circuity  of  action  might 
be  avoided  in  the  first  instance  by  requiring  the  purchaser  to 
deliver  up  the  land  as  a  condition  precedent  to  restitution  of  the 
purchase  money.  Accordingly  it  has  been  held  that  the  invalidity 
of  the  contract  of  sale  should  occasion  no  exception  to  the  rule  that 
the  purchaser  cannot  recover  back  the  purchase  money  so  long  as 
he  retains  possession  of  the  premises.55 

whether  with  or.  without  covenants  for  title,  does  not  appear.  The  case  of 
Walker  v.  Constable,  1  Bos.  &  Pul.  406,  was  cited  by  the  court  in  Hurst  v. 
Means,  supra,  in  support  of  this  proposition.  It  seems,  however,  that  in  that 
case,  the  contract  being  within  the  Statute  of  Frauds  and  void,  the  purchaser 
was  merely  denied  a  recovery  of  the  expenses  of  examining  the  title,  and  was 
allowed  to  recover  the  purchase  money  on  a  count  for  money  had  and  re- 
ceived. The  case  does  not  show  whether  the  plaintiff  had  or  had  not  restored 
the  possession. 

55  Cope  v.  Williams,  4  Ala.  362,  where  it  was  said  by  COOLIEB,  C.  J. : 
"  Morality  forbids  the  idea  that  one  man  should  take  possession  of  another's 
property  under  a  contract  which  at  most  is  merely  void,  and  notwithstand- 
ing its  continuous  enjoyment,  refuse  to  make  for  it  any  remuneration.  Here 
the  seller  does  not  seek  to  recover  of  the  purchaser  upon  his  contract  for  pay- 
ment, but  the  action  is  by  the  buyer,  and  assumes  the  utter  invalidity  of  the 
contract,  and  asserts  a  right  to  be  refunded  what  has  been  paid  under  it, 
although  the  purchaser's  possession  has  never  been  molested,  and  the  vendor 
had  not  refused  to  execute  the  contract.  Such  a  demand  is  against  equity 
and  good  conscience,  and  cannot  be  entertained."  See,  also,  the  dissenting 
opinion  of  COPE,  J.,  in  McCracken  v.  San  Francisco,  16  Cal.  638.  In  Rey- 
nolds v.  Harris,  9  Cal.  338,  it  was  held  that  no  eviction  was  necessary  to 
enable  the  purchaser  to  recover  back  the  purchase  money  where  the  title  had 
failed  and  the  contract  was  void  under  the  Statute  of  Frauds.  But  in  this 
case  the  purchaser  had  given  up  the  possession,  and  it  was  not  decided  that 
the  mere  invalidity  of  the  contract  would  justify  the  purchaser  in  detaining 
the  possession. 


OF  VIRTUAL  RESCISSION  BY  PROCEEDINGS  AT  LAW  AFTER  THE 
CONTRACT  HAS  BEEN  EXECUTED. 

DETENTION  OF  THE  PURCHASE  MONEY. 
CHAPTER  XXVI. 

OF   DETENTION  OF   THE   PURCHASE   MONEY   WHERE   THERE   HAS 
BEEN  A  BREACH  OF  THE  COVENANT  OF  SEISIN,  (a) 

GENERAL  RULE.     §   264. 

QUALIFICATIONS  OF  THIS  RULE.     §  265. 

BREACH  OF  COVENANT  AS  TO  PART  OF  THE  PREMISES.    §  266. 

§  264.  GENERAL  RULE.  It  has  been  frequently  declared  that 
an  executed  contract  for  the  sale  of  lands  cannot  be  rescinded  upon 
the  sole  ground  of  want  of  title  in  the  vendor,  unattended  by  any 
circumstances  of  fraud  or  mistake  in  the  execution  of  the  contract.1 
^o  case  can  be  found  in  which,  after  delivery  of  possession  and 
execution  of  a  conveyance  on  the  part  of  the  vendor,  and  payment 
of  the  purchase  money  and  acceptance  of  a  conveyance  on  the  part 
of  the  purchaser,  the  vendor  has  been  ordered  to  restore  the  pur- 
chase money  to  the  purchaser,  and  the  purchaser  directed  to  recon- 
vey  the  premises  to  the  vendor,  upon  the  ground  that  the  title  has 
failed.2  And  in  many  of  the  States  the  rule  ft  established  that  if 

(a)  It  was  the  desire  of  the  author  to  present  in  unbroken  sequence  in  this 
part  of  his  work  each  of  the  cardinal  rules  which  govern  the  right  of  the 
purchaser  upon  failure  of  the  title,  to  detain  or  to  recover  back  the  purchase 
money,  since  the  exercise  of  this  right  in  most  instances  amounts  in  sub- 
stance to  an  election  to  rescind  the  contract.  But  inasmuch  as  the  averment 
of  an  eviction  under  title  paramount  as  a  defense  to  an  action  for  the  pur- 
chase money,  is  substantially  a  cross-action  by  the  purchaser  on  the  covenant 
of  warranty,  and  is,  therefore,  an  affirmance  of  the  contract,  it  has  been 
deemed  proper  to  consider  that  subject  in  a  chapter  under  the  subdivisions 
"  Affirmance  by  Proceedings  at  Law  after  the  Contract  has  been  Executed," 
and  "Action  for  Covenant  Broken,"  ante,  §§  108,  180. 

^eebe  v.  Swartwout,  3  Gil.   (111.)    168;  Ohling  v.  Luitjens,  32  111.  23. 

2  See  the  case  of  Hart  v.  Hannibal  &  St.  J.  R.  R.  Co.,  65  Mo.  509.  The  pur- 
chaser filed  his  petition  (declaration)  alleging  that  he  bought  the  land  in 
1863,  paid  the  purchase  money  in  full  and  took  a  conveyance,  with  covenants 
of  seisin,  etc.,  that  his  vendor  had  no  title  to  the  land;  that  the  title  was 
outstanding  in  a  person  named,  and  that  he  had  offered  to  rescind  the  con- 
tract, and  tendered  a  reconveyance  to  the  vendor.  The  plaintiff  had  not  in- 
closed or  cultivated  the  land,  but  there  was  nothing  to  prevent  him  from 
taking  possession  and  occupying  the  premises.  There  was  a  judgment  for  the 


DETENTION  OF  PUECHASE  MONET.  631 

the  purchaser  has  accepted  a  conveyance  with  covenants  for  title, 
and  has  not  been  actually  or  constructively  evicted  from  the  prem- 
ises by  one  having  a  better  right,  nor  compelled  to  satisfy  an 
incumbrance  on  the  estate,  he  cannot  detain  the  unpaid  purchase 
money  in  his  hands,  though  a  clear  failure  of  the  vendor's  title 
should  appear.  We  have  seen  that  if  he  is  evicted  from  the  prem- 

plaintiff,  which  was  reversed  on  appeal,  the  court  saying :  "  The  parties  tried 
the  cause  as  if  the  plaintiff  had  sued  the  defendant  for  a  breach  of  the  cove- 
nant of  seisin,  and  judgment  was  rendered  for  the  amount  of  the  purchase 
money  and  interest.  Had  it  been  such  a  suit,  the  plaintiff  would  only  have 
been  entitled  to  nominal  damages,  as  no  actual  or  constructive  eviction  was 
shown.  But  the  suit  was  distinctly  brought  for  a  rescission  of  the  executed 
contract  of  sale.  The  petition  contained  no  allegation  of  fraud  or  misrepre- 
sentation of  facts  in  relation  to  the  title,  and  without  such  allegations  a 
court  of  equity  has  no  authority  to  grant  the  relief  prayed.  The  vendee  in 
such  case  must  rely  on  the  covenants  contained  in  his  deed."  In  the  case  of 
Simpson  v.  Hawkins,  1  Dana  ( Ky. ) ,  305,  the  court  said :  "  Where  contracts 
are  executed  by  conveyances  we  are  of  opinion  that  there  can  be  no  rescission 
of  a  contract  in  any  case  unless  it  has  been  tainted  by  actual  fraud.  If  the 
warranty  of  title  has  been  broken  so  as  to  entitle  the  vendee  to  damages,  or 
if  the  vendee  be  entitled  to  damages  upon  a  covenant  of  seisin,  he  may  apply 
to  the  chancellor,  where  the  vendor  is  insolvent,  to  set  off  those  damages 
against  the  unpaid  portion  of  the  purchase  money.  The  ground  upon  which 
the  chancellor  interferes  in  such  cases  is  the  prevention  of  the  irreparable 
mischief  which  otherwise  might  result  from  the  insolvency.  He  ought  not  to 
act  upon  the  principle  of  rescinding  the  contract.  On  the  contrary,  he  should 
affirm  the  contract,  and  secure  to  the  party  such  damages  as  he  might  be 
entitled  to  for  a  partial  or  total  violation  thereof  by  the  obligor.  If  a  deed 
of  conveyance  be  executed  for  any  quantity  of  land,  and  the  vendee  is  put 
into  possession  thereafter,  in  case  he  loses"  half  or  three-fourths  of  the  land, 
the  law  only  authorizes  a  recovery,  upon  the  warranty,  of  damages  conv 
mensurate  with  the  loss.  The  chancellor  must  follow  the  law  and  not  lay 
hold  of  such  a  partial  loss,  and  require  the  vendor  to  take  back  the  portion 
of  the  land  saved  and  return  the  purchase  money  for  that,  under  the  idea  of 
rescinding  contracts."  In  Vance  v.  House,  5  B.  Mon.  (Ky.)  540,  it  was  said 
by  the  court:  "This  is  the  case  of  an  executed  contract,  where  the  convey- 
ance has  keen  made  and  accepted  with  warranty  of  title,  and  possession  de- 
livered and  uninterruptedly  enjoyed,  without  eviction  or  molestation.  In  such 
a  case  a  bill  for  the  dissolution  of  the  contract  and  the  payment  of  the 
consideration  enjoined  cannot  be  sustained  except  in  the  case  of  fraud,  in- 
solvency or  non-residency  of  the  vendor,  and  a  palpable  and  threatening 
danger  of  immediate  or  ultimate  loss,  without  legal  remedy  by  reason  of  the 
defects  in  the  title  conveyed  and  the  inability  of  the  vendee  to  protect  him- 
self against  eviction  under  it.  And  to  sustain  such  a  bill  after  the  vendee 
has  accepted  the  conveyance,  the  onus  lies  on  him  to  establish  to  the  satisfac- 
tion of  the  chancellor  that  the  defect  of  title  and  imminent  danger  of  eviction 
exists." 


632  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

ises  or  forced  to  discharge  an  incumbrance  thereon,  he  may  set  up 
that  fact  as  a  defense  by  way  of  counterclaim  or  recoupment  in 
an  action  for  the  purchase  money.3  No  particular  hardship  is 
involved  in  requiring  a  grantee,  who  has  paid  the  whole  purchase 
money,  to  await  an  eviction  or  disturbance  of  his  possession  before 
he  can  recover  back  the*  purchase  money,  or  rather  its  equivalent 
in  the  shape  of  damages,  from  the  grantor.  But  that  he  should 
be  compelled  to  pay  over  the  purchase  money  when  there  is  a 
moral  certainty  of  his  eviction  by  an  adverse  claimant,  and  a 
possibility  that  his  judgment  against  the  grantor  for  damages  may 
be  worthless  when  recovered,  does  violence  to  common  principles 
of  equity  and  right.  Such,  however,  is  the  consequence  of  a  rigid 
application  of  the  maxim  caveat  emptor.  But  in  some  of  the 
States  the  restraints  of  this  maxim  or  rule  have  been  thrown  off 
in  a  large  degree.  We  shall  see  that  in  the  State  of  Pennsylvania 
the  purchaser  is  permitted  to  detain  the  purchase  money,  though 
he  took  a  conveyance  without  covenants  for  title,  if  he  purchased 
without  notice  of  the  defect  in  the  title.4  And,  with  the  same 
qualification,  in  the  States  of  Texas  and  South  Carolina,  the 
existence  of  a  paramount  title  to  the  premises  in  a  stranger,  is  a 
good  defense  to  an  action  for  the  purchase  money,  though  the 
purchaser  holds  under  a  deed  with  general  warranty,  and  has  not 
been  disturbed  in  the  possession  of  the  premises.5  In  a  number 
of  other  States  he  is  permitted  to  enjoin  the  collection  of  the  pur- 
chase money  if  he  can  show  that  by  reason  of  the  non-residence 
or  insolvency  of  the  grantor  his  remedy  by  action  for  breach  of 
the  covenant  of  warranty  will  prove  unavailing  when  the  right  to 
maintain  the  action  shall  have  accrued.6  The  decisions  in  these 
States,  together  with  those  in  other  States,  directly  or  incidentally 
affirming  the  right  of  the  purchaser  to  detain  the  purchase  money 
where  there  has  been  a  total  failure  of  the  title,  upon  reconveying 
or  offering  to  reconvey  the  premises  to  the  grantor,  justify  us,  it 
is  believed,  in  laying  down  the  following  proposition: 

PEOPOSITION  III.  If  the  contract  has  been  executed  by  a  con- 
veyance with  a  covenant  of  seisin  or  of  good  right  to  convey,  and 

•Ante,  §  180. 
4  Post,  S  271. 
•Ante,  p.  §§  189,  190. 
•Post,  §  331. 


DETENTION  OF  PUECHASE  MONEY.  633 

it  clearly  appears  that  the  covenantor  had  no  title,  the  covenantee, 
though  he  has  not  been  disturbed  in  the  possession,  will,  it  seems, 
in  some  of  the  American  States,  be  permitted  to  set  up  the  breach 
of  the  covenant  of  seisin  as  a  defense  to  an  action  for  the  purchase 
money,  upon  condition  that  he  reconvey  the  premises  to  the  cove- 
nantor, and  do  all  that  may  be  necessary  to  put  him  in  statu  quo.1 
In  one  of  those  cases  the  court  said :  "  We  fully  recognize  the 
principle  that  the  true  consideration  of  the  notes  given  for  the 
purchase  money,  was  the  land,  and  not  the  covenants  in  the  deed ; 
and  as  the  title  to  the  land  had  been  defeated  by  an  incumbrance 

T  Owens  v.  Rector,  44  Mo.  390,  392.  McDaniel  v.  Bryan,  8  111.  Rep.  273. 
Mudd  v.  Green,  (Ky.)  14  S.  W.  Rep.  347.  Cartwright  v.  Culver,  74  Mo.  179. 
Kirtz  v.  Peck,  113  N.  Y.  222,  231;  21  N.  E.  Rep.  130.  Lowry  v.  Kurd,  7 
Minn.  356  (282).  Buell  v.  Tate,  7  Bl.  (Ind.)  55;  Marvin  v.  Applegate,  18 
Ind.  425.  McDunn  v.  DCS  Moines,  34  Iowa,  467;  Beard  v.  Dulaney,  35  Iowa, 
16.  Barnett  v.  Clark,  5  Sneed  (Tenn.)  436;  Land  Co.  v.  Hill,  3  Pick. 
(Tenn.)  589,  598;  11  S.  W.  Rep.  797.  Kimball  v.  West,  15  Wall.  (U.  S.) 
377.  Michael  v.  Mills,  17  Ohio,  601.  Smith  v.  Hudson,  45  Ga.  208.  See,  also, 
the  cases  cited,  post,  §  271,  "Rule  in  Pennsylvania,"  and,  ante,  §§  189,  190, 
"  Rule  in  South  Carolina  and  Texas,"  and,  post,  §  331,  "  Insolvency  and 
Non-residence  of  the  Covenantor."  Sir  Edward  Sugden  says  that  where  the 
title  is  defective  the  covenantee  would  not  be  bound  to  wait  until  eviction, 
but  might  bring  his  action  of  covenant,  and,  if  necessary,  offer  to  reconvey 
the  interest  or  title  actually  vested  in  him.  2  Sugd.  Vend.  (14th  ed. )  611. 
No  authority  is  cited  for  the  proposition,  and  it  has  been  doubted  by  Mr. 
Dart.  Dart  Vend.  (5th  ed.)  792.  In  Lawless  v.  Collier,  19  Mo.  480,  it  was 
held  that  the  rule  which  limits  the  recovery  in  an  action  on  a  covenant  of 
seisin,  to  a  nominal  sum,  until  there  has  been  an  eviction,  has  no  application 
where  the  title  conveyed  has  been  defeated,  and  the  grantee  or  his  assigns 
hold  by  a  tifle  adverse  to  that  acquired  from  their  grantor,  and  that  in  such 
case  there  can  be  no  necessity  for  submitting  to  the  form  of  an  eviction  in 
order  to  be  entitled  to  a  recovery  of  full  damages  for  a  breach  of  the  cove- 
nant of  seisin;  neither  is  there  any  necessity  for  a  reconveyance  to  the 
grantor,  in  order  to  sustain  such  recovery.  It  is  true  these  principles  were 
declared  in  an  action  for  breach  of  the  covenant  of  seisin,  but  they  are  fully 
as  applicable  where  such  breach  is  sought  to  be  availed  of  as  a  defense  to  an 
action  for  the  purchase  money.  In  Akerly  v.  Vilas,  21  Wis.  88;  99  Am.  Dec. 
165,  which  was  an  action  to  foreclose  a  purchase-money  mortgage,  it  was 
held  that  the  defendant  might,  under  a  statutory  provision  allowing  a  coun- 
terclaim to  be  set  up  in  foreclosure  proceedings,  counterclaim  for  a  breach 
of  the  covenant  of  seisin,  though  he  was  in  the  undisturbed  possession  of  the 
premises.  See,  also,  Merritt  v.  Gouley,  58  Hun  (N.  Y.),  372;  12  N.  Y.  Supp. 
132.  The  proposition  stated  in  the  text  was  admitted,  though  the  point  was 
not  expressly  decided,  in  Yazel  v.  Palmer,  81  111.  82.  There  had  been  a  con- 
veyance in  that  case,  but  whether  with  or  without  covenants  for  title  does 


634  MABKETABLE    TITLE    TO    BEAL    ESTATE. 

prior  to  the  deed  to  the  defendant,  the  title  at  the  time  of  the 
maturity  of  the  notes  had  failed ;  and  so  the  consideration  of  the 
notes  failed  if  the  defendant  so  chose  to  treat  it,  and  the  defend- 
ant then  had  the  right  to  repudiate  the  contract  of  sale  and  the 
notes,  for  the  reason  that  the  consideration  of  the  notes  had  failed. 
But  the  mere  declaration  that  he  repudiated  the  contract  was  not 
sufficient  to  effectuate  that  purpose.  He  should  have  put  the  other 
parties  in  statu  quo  bj  a  reconveyance  of  the  land,  or,  at  least, 
a  release  of  the  covenants  of  the  deed,  so  that  any  subsequent  title 
acquired  by  the  grantor,  would  not  enure  to  his  benefit,  and  vest 

not  appear.  The  grantee  had  resold  and  conveyed  the  premises,  arid  when 
sued  for  the  purchase  money,  set  up  want  of  title  as  a  defense.  The  court 
said:  "He  (the  original  grantee)  cannot  withold  the  purchase  money,  and 
still  retain  the  plaintiff's  title,  whatever  it  was,  which  he  obtained  by  the 
conveyance.  Before  he  can  recoup  the  value  of  the  land  to  which  he  says  the 
title  failed,  he  must  cause  his  grantee  to  reconvey  it,  or  offer  to  do  so,  back 
to  plaintiff.  Xo  defense  can  be  interposed  until  the  parties  have  been  placed 
in  statu  quo  by  a  reconveyance,  or  an  offer  to  reconvey  to  plaintiff  whatever 
title  defendant  received  from  plaintiff,  no  matter  what  its  title  may  be."  In 
Mover  v.  Shoemaker,  5  Barb.  (N.  Y.)  319,  it  was  held  that  the  covenantec 
could  not  maintain  assumpsit  to  recover  back  the  purchase  money  on  failure 
of  the  title,  without  reconveying  the  premises.  The  right  to  rescind,  pro- 
vided the  covenantee  would  make  the  adverse  claimant  a  party,  so  that  the 
rights  of  all  parties  might  be  adjusted  in  the  suit,  was  admitted  in  Wiley 
v.  Fitzpatrick,  3  J.  J.  Marsh.  (Ky.)  583,  586.  In  Brick  v.  Coster,  4  Watts 
&  S.  (Pa.)  499,  it  was  said  that  an  affidavit  of  defense  by  a  grantee,  with 
warranty,  in  a  suit  for  the  purchase  money,  would  be  insufficient  unless  it 
alleged  adverse  claims  to  be  good,  or  that  affiant  believed  them  to  be  good. 
If  the  objection  to  the  title  be  an  outstanding  incumbrance,  the  grantee  will 
be  entitled  to  detain  the  purchase  money  until  the  grantor  removes  the  in- 
cumbrance. Brown  v.  Montgomery,  (Tex.  Civ.  App.)  31  S.  W.  Rep.  1079.  In 
Wisconsin  there  are  dicta  in  several  early  cases  which  support  the  proposi- 
tion stated  in  the  text.  Taft  v.  Kessel,  16  Wis.  273;  Noonan  v.  Illsley,  21 
Wis.  138;  84  Am.  Dec.  742;  Mecklem  v.  Blake,  22  Wis.  495;  99  Am.  Dec.  68. 
But  they  are  inconsistent  with  later  decisions  in  that  State.  In  Smith  v. 
Hughes,  50  Wis.  625,  it  was  said :  "  The  counterclaims  of  the  defendant,  for  a 
rescission  of  the  bargain  and  for  damages,  are  predicated  upon  the  breach  of 
the  covenant  of  seisin  in  the  deed  of  the  respondents,  executed  and  delivered 
in  July,  1872.  It  is  too  well  settled  that  only  executory  contracts  can  be 
rescinded,  to  require  discussion.  This  method  of  relief  is  the  converse  of 
specific  performance,  and  in  its  very  nature  can  have  application  only  to 
executory  contracts,  and  this  court  has  settled  the  question  beyond  contro- 
versy by  repeated  decisions.  In  direct  application  to  this  case,  it  is  held  in 
Booth  v.  Ryan,  31  Wis.  45,  that,  especially,  a  rescission  cannot  be  made  after 
a  deed  with  full  covenants,  together  with  possession,  have  been  delivered  in 


DETENTION  OF  PURCHASE  MONEY.  635 

in  him."8  These  views,  undoubtedly  at  variance  with  the  current 
of  American  authority,  find  support  in  a  number  of  adjudicated 
cases.' 

The  equity  of  this  rule  is  undeniable.  That  a  purchaser  with  a 
confessedly  bad  title  must  pay  the  purchase  money  and  await  an 
eviction  from  the  premises  before  he  can  have  the  benefit  of  a 
covenant  of  seisin  by  his  grantor,  may  easily  be  productive  of  great 
hardship;  for  when  that  eviction  occurs  the  covenantor  may  be 
insolvent  or  a  non-resident;  or  the  remedy  against  him  may  be 
barred  by  the  Statute  of  Limitations,  for  the  statute  begins  to  run, 
not  from  the  time  of  the  eviction,  but  from  the  delivery  of  the 

full  execution  of  the  contract  of  sale.  *  *  *  The  remark  in  the  opinion  of 
Chief  Justice  DIXON,  in  Mecklem  v.  Blake,  22  Wis.  495;  99  Am  Dec.  68, 
intimating  that  a  rescission  might  be  made  in  such  a  case,  was  clearly  obiter, 
and  without  due  consideration."  In  McClennan  v.  Prentice,  77  Wis.  124; 
45  N.  W.  Rep.  943,  it  was  held,  in  an  action  for  breach  of  a  covenant  of  seisin 
in  which  it  appeared  that  the  plaintiff  had  never  been  in  possession  of  the 
premises,  that  the  burden  of  proof  was  on  the  grantor  to  show  that  he  was 
seized  of  an  estate  in  fee  at  the  time  of  the  execution  of  the  deed,  and  that 
in  the  absence  of  such  proof  the  grantee  might,  on  tendering  a  reconveyance, 
rescind  the  contract  and  recover  back  the  purchase  price  paid,  with  interest, 
etc.  This  case  came  again  before  the  court,  and  is  reported  in  85  Wis.  427. 
Without  disapproving  the  decision  at  the  former  hearing,  the  court  an- 
nounces a  rule  inconsistent  therewith,  namely,  that  an  executed  contract  can- 
not be  rescinded,  except  upon  the  ground  of  mistake.  Apparently,  the  court 
draws  a  distinction  between  a  rescission  by  a  decree  of  a  court  of  equity,  and  a 
virtual  rescission  accomplished  at  law,  by  permitting  the  purchaser  to  re- 
cover back  or  detain  the  purchase  money  in  the  shape  of  damages  for  a  breach 
of  the  covenant  of  seisin.  In  Taylor  v.  Lyon,  2  Dana  (Ky. ),  279,  it  was  said: 
"If  he  (the  purchaser)  took  no  covenant  of  seisin,  which  would  have  enabled 
him,  without  an  eviction,  to  put  the  title  to  a  legal  and  decisive  test  at  any 
time,  he  cannot  call  on  the  chancellor  to  supply  such  an  omission  in  the  con- 
tract, and,  by  anticipating  an  eviction,  to  decree  a  rescission."  In  Jackson 
v.  Norton,  6  Cal.  187,  the  right  of  the  covenantee  to  a  perpetual  injunction 
against  the  collection  of  the  purchase  money,  provided  he  reconveyed  the 
premises  to  the  grantor,  was  conceded.  In  Baird  v.  Goodrich,  5  Heisk. 
(Tenn. )  20,  the  covenantee,  on  failure  of  the  title  and  suit  against  him  to 
recover  the  land,  filed  a  bill  against  the  covenantor's  representative  to  attach 
the  estate  of  the  covenantor  in  his  hands,  and  hold  it  so  that  it  might  be 
forthcoming  to  answer  the  covenantor's  liability  in  case  the  plaintiff  should 
lose  the  property.  There  was  a  demurrer  on  the  ground  that  the  plaintiff's 
remedy  was  on  his  covenants,  but  the  demurrer  was  overruled. 

1  Deal  v.  Dodge,  26  111.  458.     See,  also,  WThitlock  v.  Denlinger,  59  111.  96. 

'  See  the  cases  cited  above. 


636  MARKETABLE    TITLE    TO    SEAL    ESTATE. 

deed  containing  the  covenant.10  Therefore,  it  might  be  that  the 
covenantee  could  be  compelled  to  pay  money  with  the  certainty  of 
a  right  accruing  sometime  in  the  future  to  recover  it  back,  but 
with  no  prespect  of  enforcing  that  right.  The  answer  to  this  has 
been  that  the  hardship  so  produced  is  the  result  of  the  purchaser's 
own  negligence  in  failing  to  examine  the  title.  This  answer  is 
unsatisfactory:  First,  because  there  are  many  defects  of  title  not 
apparent  from  the  public  records  nor  upon  the  face  of  the  instru- 
ments under  which  the  vendor  claims,  and  which  the  most  skillful 
examination  of  the  title  would  not  disclose ;  and,  secondly,  because 
the  very  purpose  for  which  a  covenant  of  seisin  is  taken  is  to  pro- 
tect the  purchaser  against  defects  of  title  which  may  have  been 
overlooked  or  undiscovered.  Another  reason  assigned  for  refusing 
to  permit  the  purchaser  to  detain  the  purchase  money  upon  a 
breach  of  the  covenant  of  seisin,  is  the  temptation  which  that 
defense  offers  to  purchasers  to  search  out  defects  in  the  title  when 
pressed  for  the  purchase  money.11  This  objection  loses  its  force 
if  the  right  of  the  purchaser  to  detain  the  purchase  money  be  con- 
fined to  cases  in  which  there  is  a  clear  and  undoubted  failure  of 
the  title,  a  hostile  assertion  of  the  adverse  title,  and  a  moral  cer- 
tainty of  the  eviction  of  the  grantee.  It  has  also  been  urged  that 
the  purchaser  may  protect  himself  by  insisting  upon  an  express 
provision  in  the  conveyance  that  the  purchase  money  may  be 
detained  and  the  premises  be  restored  to  the  grantor  if  the  title 
should  be  found  to  be  bad,12  and  that  if  he  neglects  a  precaution 
of  this  kind,  he  should  not  complain  when  required  to  pay  the 
purchase  money  and  await  an  eviction  by  one  having  the  better 
title.  Such  a  provision  however,  is  so  much  out  of  the  usual 

10  Rawle  Covts.  ( 5th  ed. )  §  229.  Matteson  v.  Vaughn,  38  Mich.  373.  Spoor 
v.  Green,  L.  R.,  9  Exch.  99.  In  Sherwood  v.  Landon,  57  Mich.  219,  the  evic- 
tion did  not  occur  until  ten  years  after  the  covenant  of  seisin  was  made,  while 
an  action  on  the  covenant  was  held  to  be  barred  after  six  years. 

"Rawle  Covts.  (5th  ed.)   §  329.     See  also  Id.  §§  178,  183,  184. 

"In  Weaver  v.  Wilson,  48  111.  125,  and  Smith  v.  Newton,  38  111.  230,  it 
was  provided  in  a  purchase-money  note  and  mortgage,  that  they  should  not  be 
payable  if  the  title  was  not  perfected.  Where  a  deed  with  general  warranty 
provided  that  deferred  payments  of  purchase  money  should  not  be  made  until 
"  acreage  of  clear  title  should  be  determined,"  it  was  held  that  the  purchaser 
might  detain  the  purchasemoney  though  there  had  been  no  eviction.  Amer- 
ican Asson.  v.  Short,  (Ky.)  30  S.  W.  Rep.  978. 


DETENTION  OF  PUECHASE  MONEY.  637 

course,  that  its  absence  would  scarcely  warrant  a  presumption  of 
laches  against  the  purchaser. 

A  number  of  cases  may  be  found  in  which  it  is  decided 
that  a  mere  breach  of  the  covenant  of  seisin,  unattended  by  an 
eviction  from  the  premises,  is  no  defense  to  an  action  for  the 
purchase  money.13  In  most  of  these  cases,  however,  it  will  be  seen 
either  that  the  covenantee  was  seeking  to  recover  back  the  purchase 
money;  or  that  he  had  purchased  with  notice  of  the  want  of  title; 

13  Ante,  p.  443,  cases  cited  in  n.  3.  McConihe  v.  Fales,  107  N.  Y.  404 ;  14 
N.  E.  Rep.  285 ;  Parkinson  v.  Sherman,  74  N.  Y.  92 ;  30  Am.  Rep.  268. 

Abbott  v.  Allen,  2  Johns.  Ch.  (N.  Y.)  519;  7  Am.  Dec.  554,  and  Bumpus  v. 
Plainer,  1  Johns.  Ch.  (N.  Y.)  213,  are  the  leading  cases  cited  to  sustain  the 
doctrine  that  a  purchaser  cannot,  on  breach  of  the  covenant  of  seisin,  detain 
the  purchase  money  unless  he  has  been  evicted.  The  objections  to  the  title 
in  those  cases  amounted  to  no  more  than  that  it  was  doubtful  or  unmarket- 
able. In  neither  case  was  there  any  one  asserting  or  prosecuting  an  adverse 
title,  nor  was  any  offer  made  to  reconvey  the  premises.  Such  objections  as 
were  made  appear  to  have  been  ferreted  out  merely  for  the  purpose  of  delay- 
ing the  collection  of  the  purchase  money.  Chancellor  KENT  rendered  the 
decision  in  both  these  cases,  and  afterwards,  in  Johnson  v.  Gere  (2  Johns. 
Ch.  546 ) ,  granted  an  injunction  staying  the  collection  of  the  purchase  money, 
upon  an  allegation  that  there  was  an  outstanding  paramount  title  in  9 
stranger,  which  was  being  prosecuted  by  suit  in  ejectment  against  the  cove- 
nantee. Johnson  v.  Gere,  however,  has  been  disapproved  in  many  subsequent 
New  York  decisions.  See  Miller  v.  Avery,  2  Barb.  Ch.  (N.  Y.)  595;  Platt  v. 
Gilchrist,  3  Sandf.  (N.  Y.  S.  C.)  118.  The  cases  cited  by  Mr.  Rawle  (Covta. 
for  Title  [5th  ed.l,  637)  to  the  proposition  that  the  purchase  money  cannot 
be  detained  upon  a  mere  breach  of  the  covenant  of  seisin,  may  be  seen  below, 
with  others  in  parentheses.  Some  pains  have  been  taken  to  indicate  briefly 
the  grounds  of  the  decision  in  most  of  these  cases,  for  in  nearly  all  of  them 
there  were  circumstances  to  bring  the  case  within  the  exceptions  to  the  rule 
stated  at  the  head  of  this  chapter;  such,  for  example,  that  the  purchaser 
made  no  offer  to  reconvey  the  premises  to  the  grantor,  or  that  the  objections 
to  the  title  were  of  a  misty  or  doubtful  character. 

Noonan  v.  Lee,  2  Bl.  (U.  S.)  499.  In  this  case,  it  is  true  that  the  cove- 
nantee offered  to  restore  the  property,  but,  for  all  that  appeared  to  the 
contrary,  he  was  advised  of  the  state  of  the  title  when  he  bought.  It  also 
appeared  that  he  took  the  property  with  a  particular  purpose  in  view,  after 
the  accomplishment  of  which  he  attempted  to  throw  the  purchase  back  on 
the  hands  of  the  vendor  without  having  paid  any  of  the  purchase  money. 
Beck  v.  Simmons,  7  Ala.  76.  Here  the  covenantee  purchased  knowing  that 
the  title  was  defective.  Burkett  v.  Munford,  70  Ala.  423.  The  contract  was 
executory  in  this  case,  and  the  court  merely  decided  that  a  rescission  should 
be  denied  in  such  a  case  if  the  purchaser  had  not  restored  the  premises  to 
the  grantor,  unless,  indeed,  it  was  necessary  for  him  to  detain  the  property 
until  he  should  be  indemnified  for  what  he  had  already  paid.  Roberts  v. 


638  MARKETABLE    TITLE    TO    REAL    ESTATE. 

or  that  he  was  seeking  to  keep  both  the  land  and  the  purchase 
money;  or  that  he  could  show  no  more  than  that  the  title  was 
doubtful  and  not  absolutely  bad.  Consequently,  they  cannot  be 
deemed  conclusive  against  the  alleged  right  of  the  covenantee  to 
resist  the  payment  of  the  purchase  money,  where  he  reconveys  or 
offers  to  reconvey  the  premises  to  the  grantor,  upon  a  complete 
and  palpable  failure  of  the  title.  In  a  State  in  which  the  rule 
that  a  breach  of  the  covenant  of  seisin  is  no  ground  for  detaining 
the  purchase  money  unless  the  covenantee  has  been  evicted,  ap- 
pears to  be  firmly  rooted,  it  is,  nevertheless,  admitted  that  a  judg- 
ment in  ejectment  against  the  covenantee  in  favor  of  an  adverse 

Woolbright,  1  Ga.  Dec.  98;  McGhee  v.  Jones,  10  Ga.  127,  133.  Here,  also, 
the  contract  was  executory,  the  vendor  having  executed  a  bond  to  make  title, 
and  to  that  bond  the  court  seems  to  have  given  the  effect  of  a  conveyance 
with  general  warranty,  so  far  as  the  right  to  detain  the  purchase  money  ia 
concerned.  Miller  v.  Long,  3  A.  K.  Marsh.  (Ky.)  334;  Perciful  v.  Kurd,  5  J. 
J.  Marsh.  (Ky.)  670;  Lewis  v.  Morton,  5  T.  B.  Mon.  (Ky.)  1.  Here  the 
objections  to  the  title  were  more  than  thirty  years  old.  So,  also,  in  Vance 
v.  House,  5  B.  Mou.  (Ky.)  537;  Casey  v.  Lucas,  2  Bush.  (Ky.),  55.  Here  it 
was  said  that,  no  danger  of  eviction  being  alleged,  the  covenantee  could  not 
have  a  rescission  of  the  contract  without  an  effort  to  procure  the  title,  or 
without  showing  that  a  good  one  could  not  be  made.  English  v.  Thomason, 
82  Ky.  281.  (In  Buford  v.  Guthrie,  14  Bush.  [Ky.],  690,  the  rule  that  an 
executed  contract  for  the  sale  of  lands  cannot  be  rescinded  except  upon  the 
ground  of  fraud  or  mistake,  seems  to  have  been  asserted  without  any  qualifi- 
cation whatever.  See,  also,  Gale  v.  Conn,  3  J.  J.  Marsh.  [Ky.l  38.)  Beebe 
v.  Swartwout,  3  Gil.  (111.)  162.  In  this  case  there  had  been  a  constructive 
eviction,  the  covenantee  not  having  been  able  to  get  possession  of  part  of  the 
land,  and  the  court  considered  that  the  remedy  at  law  on  the  bond  was  suffi- 
cient. Ohling  v.  Luitjens,  32  111.  23;  Lovingston  v.  Short,  77  111.  587.  Here 
the  covenantee  not  only  bought  with  notice  that  the  title  to  part  of  the  land 
was  doubtful,  and  asked  for  a  rescission  as  to  that  part,  but  failed  to  show 
that  any  one  was  claiming  or  asserting  a  paramount  title  to  that  portion. 
Middlekauff  v.  Barick,  4  Gill  (Md. ),  290.  In  this  case  the  purchaser  took  a 
conveyance  with  covenants  which  did  not  embrace  the  defect  of  which  he 
complained.  Haldane  v.  Sweet,  55  Mich.  196.  Rescission  was  denied  here 
(1)  because  the  covenantee  bought  with  notice  of  certain  physical  incum- 
brances  of  which  he  complained,  and  (2)  that  the  objections  made  to  the 
title  consisted  of  doubtful  outstanding  claims.  Wilty  v.  Hightower,  6  Sm. 
&  M.  (Miss.)  345.  In  this  case  the  covenantee  was  seeking  to  recover  back 
and  not  to  detain  the  purchase  money,  and  it  was,  of  course,  held  that  his 
remedy  was  on  the  covenants.  McDonald  v.  Green,  9  Sm.  &  M.  (Miss.)  138. 
The  contract  was  executory  in  this  case.  So,  also,  in  Green  v.  McDonald,  13 
Sm.  &  M.  (Miss.)  445.  (See  Walker  v.  Gilbert,  7  Sm.  &  M.  [MissJ  456.) 
Cooley  v.  Rankin,  11  Mo.  647.  The  objections  to  the  title  in  this  case  were 


DETENTION  OF  PUECHASE  MONEY. 

claimant  will  justify  an  injunction  against  the  collection  of  the 
purchase  money,  though  it  is  clear  that  such  a  judgment  does  not 
amount  to  an  eviction,  unless  the  covenantee  chooses  to  surrender 
the  possession  to  the  adverse  claimant.14  In  such  a  case,  it  would 
be  against  conscience  to  compel  the  covenantee  to  pay  over  the 

such  as  showed  it  to  be  merely  doubtful  and  not  absolutely  bad.  Edington  v. 
Nix,  49  Mo.  135.  Rescission  was  refused  because  the  covenantee  made  no 
offer  to  restore  the  premises,  and  was  seeking  to  recover  back  and  not  to 
detain  the  consideration.  Beach  v.  Waddell,  4  Halst.  (N.  J.  Eq.)  299.  It 
was  not  shown  here  that  the  title  had  failed.  Leggett  v.  McCarty,  3  Edw. 
Ch.  (N.  Y. )  124.  There  was  no  offer  to  return  the  premises  here,  and  the 
court  said  that  while  the  covenantee  held  possession  it  would  be  unreasonable 
to  say  that  he  might  not  be  compelled  to  pay  the  purchase  money.  Woodruff 
v.  Bunce,  9  Paige  Ch.  (N.  Y.)  443;  38  Am.  Dec.  559.  Whitworth  v.  Stuckey, 
1  Rich.  Eq.  (S.  C.)  404;  Van  Lew  v.  Parr,  2  Rich.  Eq.  (S.  C.)  321;  Maner  v. 
Washington,  3  Strobh.  Eq.  (S.  C.)  171.  The  entire  purchase  money  had  been 
paid  in  this  case,  and  the  object  of  the  camplainant  was  to  recover  it  back. 
Buchanan  v.  Alwell,  8  Humph.  (Tenn.)  516.  The  contract  was  executory  in 
this  case.  Young  v.  Butler,  1  Head  (Tenn.)  639.  In  this  case  the  covenantee 
expressly  declined  to  restore  the  possession  because  he  had  gone  on  the  land 
to  live  and  had  made  valuable  improvements.  Cohen  v.  Woolard,  2  Tenn. 
Ch.  686;  Jones  v.  Fulgham,  3  Tenn.  Ch.  193.  Long  v.  Israel,  9  Leigh  (Va.), 
564.  Here  the  covenantee  sought  to  recover  back  and  not  to  detain  the  pur- 
chase money,  and  the  court  said  (per  TUCKER,  P.)  that  they  had  never  gone 
so  far  as  to  relieve  a  covenantee  complaining  of  failure  of  title  except  where 
the  application  was  to  restrain  the  recovery  of  the  purchase  money.  In 
Young  v.  McClung,  9  Grat.  (Va.)  336,  358,  the  purchaser  bought  at  a 
judicial  sale,  and,  with  full  knowledge  of  the  defective  title,  allowed  the  sale 
to  be  confirmed  without  objection.  In  Prevost  v.  Gratz,  3  Wash.  (C.  C. )  434, 
439,  the  land  was  in  the  possession  of  adverse  claimants,  and  there  was  no 
obstacle  to  complete  and  immediate  relief  on  the  covenants  for  title.  The 
court  went  so  far  as  to  deny  the  right  of  the  covenantee  to  detain  the  pur- 
chase money,  though  the  covenant  of  warranty  had  been  broken  by  a 
constructive  eviction.  In  that  respect  the  case  would  hardly  be  deemed  an 
authority  at  the  present  day.  Ante,  §  180.  Greenleaf  v.  Queen,  1  Pet. 
(U.  S.)  138.  The  contract  was  executory  in  this  case.  Patterson  v.  Taylor, 
7  How.  (U.  S.)  132.  The  title  in  this  case  was  not  absolutely  bad;  it  was 
merely  doubtful  or  unmarketable  at  most,  the  covenantor  having  been  in  pos- 
session under  color  of  title  for  more  than  twenty  years.  Kimball  v.  West, 
15  Wall.  (U.  S.)  377,  379.  This  was  a  suit  to  rescind  the  contract  and 
recover  the  whole  consideration,  $22,000,  and  it  appeared  at  the  hearing  that 
the  covenantor  had  at  his  own  cost  removed  all  objections  to  the  title. 
Smoot  v.  Coffin,  4  Mackey,  (D.  C.),  407.  It  did  not  appear  in  this  case  that 
there  was  a  clear  outstanding  title  in  a  stranger. 

"Green  v.  McDonald,  13  Sm.  &  Marsh.  (Miss.)  445,  where  it  was  said  by 
the  court :  "  It  seems  that  the  objection  to  granting  relief  before  eviction  in 
cases  of  the  failure  of  consideration  arising  from  defects  in  the  title  is  placed 


640  MAKKETABLE    TITLE    TO    EEAL    ESTATE. 

purchase  money  to  the  covenantor,  and  take  the  risk  of  an  inability 
to  get  it  back  in  the  form  of  damages,  after  he  shall  have  been 
evicted  by  legal  process  upon  the  judgment. 

The  permanent  detention  of  the  unpaid  purchase  money  upon  a 
breach  of  the  covenant  of  seisin  is  in  effect  a  rescission  of  the  con- 
tract ;15  and,  therefore,  this  alleged  right  of  the  purchaser  has  been 
denied  in  some  cases  upon  the  ground  that  an  executed  contract 
cannot  be  rescinded  unless  the  agreement  was  founded  in  fraud 
or  mistake.16  The  wisdom  and  expediency  of  this  rule  is  obvious 
where  the  contract  has  been  in  fact  fully  executed,  that  is,  where 
the  whole  purchase  money  has  been  paid  and  the  purchaser  is  in 
possession  of  the  premises.  The  vendor  may  have  invested  the 
purchase  money  in  other  property,  or  the  purchaser  may  have 
dealt  with  the  estate  in  such  a  manner  that  it  may  be  impossible 
to  put  the  vendor  in  as  good  a  position  as  he  was  in  before  the 
contract  was  executed.  But  it  may  be  seriously  doubted  whether 

chiefly  on  the  ground  of  incompetency  of  a  court  of  chancery  as  not  possess- 
ing any  direct  jurisdiction  over  legal  titles.  It  is  conceded  that  it  may  try 
titles  to  land  when  the  question  arises  incidentally,  but  it  is  understood  not 
to  be  within  its  province  when  the  case  depends  on  a  simple  legal  title  and  is 
presented  directly  by  the  bill.  If  this  be  the  true  reason  why  a  previous 
eviction  is  necessary  to  authorize  the  interposition  of  the  court,  a  judgment 
at  law  establishing  a  failure  of  title  would  be  held  sufficient  for  that  purpose 
without  eviction."  If  this  be  true  it  may  be  added  that  it  is  difficult  to  per- 
ceive why  the  same  reasoning  would  not  apply  in  a  court  of  law  when  the 
purchaser  sets  up  a  judgment  in  ejectment  as  a  defense  to  an  action  for  the 
purchase  money.  In  Jaques  v.  Esler,  4  N.  J.  Eq.  461,  it  was  said:  "It  is 
well  settled  that  the  purchaser  of  real  estate  by  deed  of  warranty  has  a  right 
to  relief  in  equity  against  the  vendor  who  seeks  to  enforce  the  payment  of  a 
bond  and  mortgage  given  for  the  purchase  money  until  a  suit  actually  brought 
to  recover  the  premises  by  a  person  claiming  them  by  paramount  title  shall 
have  been  determined.  He  is  not  obliged  to  look  merely  to  the  covenants  in 
the  deed.  He  is  not  to  be  driven  to  such  circuity  of  action,  nor  to  rely  upon 
that  as  his  sole  security.  The  fund  in  his  hands  is  a  security  of  which  it 
would  be  inequitable  to  deprive  him."  It  is  true  that  these  objections  were 
made  with  respect  to  the  right  of  the  covenantee  to  enjoin  the  collection  of 
the  purchase  money  before  eviction,  but  the  principle  of  the  decision  is  ap- 
plicable in  any  case  in  which  the  purchaser  seeks  to  detain  the  purchase 
money  so  long  as  the  title  is  actually  threatened. 

15  A  perpetual  injunction  against  proceedings  to  collect  the  purchase  money 
practically   amounts    to   rescission   of   an   executed   contract.      McWhirter   v. 
Swaffer,  6  Baxt.   (Tenn.)   342,  347.     Golden  v.  Maupin,  2  J.  J.  Marsh.  (Ky.). 
237,  241. 
"McClennan  v.  Prentice,  85  Wis.  427. 


DETENTION  OF  PUBCHASE  MONEY.  641 

a  contract  for  the  sale  of  lands  can  be  said  to  be  "  executed  "  so 
long  as  any  part  of  the  purchase  money  remains  unpaid,"  espe- 
cially in  America,  where  it  is  a  common  practice  to  execute  a  con- 
veyance to  the  purchaser  as  soon  as  the  contract  of  sale  is  made, 
and  to  take  a  mortgage  or  trust  upon  the  property  to  secure  the 
unpaid  purchase  money.  In  England,  where  transfers  of  real 
property  are  comparatively  infrequent,  it  seems  that  conveyances 
are  seldom  made  to  purchasers  until  all  the  purchase  money  has 
been  paid,  and,  therefore,  in  that  country  there  are  few,  if  any, 
occasions  to  modify  the  rule  against  the  rescission  of  executed 
contracts,  so  as  to  permit  the  detention  of  unpaid  purchase  money 
upon  a  clear  failure  of  the  title. 

An  able  and  discriminating  text  writer  admits  the  right  of  the 
purchaser  to  recover  the  consideration  money  as  damages  for  a 
breach  of  the  covenant  of  seisin,  where  the  failure  of  title  is  clear 
and  undoubted  and  the  breach  affects  the  whole  title,  and  declares 
that  the  effect  of  such  a  recovery  is  to  revest  the  title,  such  as  it  is, 
in  the  covenantor.18  But  elsewhere  the  same  author  lays  down  that 

"  A  contract  is  said  to  be  executed  when  nothing  remains  to  be  done  by 
either  party.  A  contract  is  said  to  be  executory  when  some  future  act  remains 
to  be  done.  Story  on  Cont.  (5th  ed.)  §  92.  Farrington  v.  Tennessee,  5  Otto 
(U.  S.),  683.  Fox  v.  Kitton,  19  111.  519,  533.  Fletcher  v.  Beck,  6  Cranch 
(U.  S.),  137.  A  contract  for  the  sale  of  lands  is  "executed"  when  the  pur- 
chase money  is  paid,  possession  given,  and  a  deed  delivered  to  the  purchaser. 
Frazer  v.  Robinson,  42  Miss.  121.  In  no  case  can  a  contract  for  the  sale  of 
lands  be  said  to  be  "  executed  "  until  the  purchase  money  has  been  paid  and 
a  conveyance  made  to  the  purchaser.  Herbemont  v.  Sharp,  2  McCord  L. 
(S.  C.)  265.  Robison  v.  Robison,  44  Am.  227,  235.  Of  course  a  contract 
for  the  sale  of  lands  is  fully  executed  by  the  acceptance  of  a  conveyance,  in 
the  sense  of  the  rule  that  excludes  evidence  of  any  antecedent  agreement  re- 
pugnant to  or  inconsistent  with  the  conveyance.  Long  v.  Hartwell,  34  N.  J. 
L.  116.  In  Adams  v.  Reed,  (Utah)  40  Pac.  Rep.  720,  it  was  held  that  the 
contract  would  not  be  regarded  as  "  executed,"  notwithstanding  a  quit-claim 
conveyance  had  been  executed  by  the  vendor  and  accepted  by  the  vendee,  if 
the  deed  conveyed  land  other  than  that  called  for  by  the  contract. 

18  Rawle  Covts.  (5th  ed.)  264.  Mr.  Rawle's  text  contains  no  positive  state- 
ment to  this  effect,  but  such  a  statement  is  found  in  a  note  on  the  page  cited. 
The  author  observes :  "  In  the  first  edition  of  this  treatise  it  was  said :  "  If 
nothing  had  been  paid  and  no  pecuniary  loss  had  been  suffered,  and  the  pos- 
session had  not  been  disturbed,  and  the  purchaser  did  not  offer  to  convey,  it 
is  believed  that  nominal  damages  only  would  in  general  be  allowed.  The 
technical  rule,  therefore,  that  the  covenant  for  seisin  is  broken,  if  at  all,  at 
once  and  completely,  is  as  respects  the  damages  little  more  than  a  technical 

41 


642:  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

equity  will  not  enjoin  the  collection  of  the  purchase  money  and 
rescind  an  executed  contract  for  the  sale  of  lands  merely  because 
the  title  has  failed;  in  other  words,  that  the  covenantee  cannot 
detain  the  purchase  money  merely  because  the  covenantor  has  no 
title.19  If  the  purchaser  may  recover  back  the  purchase  money  as 
damages  upon  a  breach  of  the  covenant  of  seisin,  it  would  seem 

one.'  Covenants  for  Title  (1st  ed.),  83  (citing  the  case  of  Collier  v.  Gamble, 
10  Mo.  472,  where  it  had  been  held  that  '  the  reasonable  rule  was  to  recover 
nominal  damages  only  until  the  estate  conveyed  was  defeated  or  the  right  to 
defeat  it  had  been  extinguished ' ) ,  and  this  passage  was  cited  in  the  more 
recent  case  of  Overhiser  v.  McCollister,  10  Ind.  44,  and  held  to  be  '  obviously- 
just.'  The  treatise  then  went  on  to  say :  '  Cases  may,  of  course,  occur  in 
which,  although  the  purchaser  may  have  paid  nothing  to  buy  in  the  para- 
mount title,  and  may  still  be  in  possession,  yet  where  the  failure  of  the  title 
is  so  complete  and  the  loss  so  morally  certain  to  happen,  that  a  court  might 
feel  authorized  in  directing  the  jury  to  assess  the  damages  by  the  consid- 
eration money.'  Upon  subsequent  consideration  the  opinion  was  formed  that 
the  first  passage  above  quoted  did  not  correctly  express  the  law,  and  it  was 
omitted  in  the  second  edition.  Since  then  the  case  in  Missouri  came  up  again 
(Lawless  v.  Collier,  19  Mo.  480),  where  the  second  of  the  passages  above 
quoted  was  referred  to  and  the  case  decided  accordingly.  It  is  believed  that 
the  text  as  now  offered  contains  the  true  statement  of  the  law,  and  that  if 
the  breach  of  the  covenant  has  occurred,  affecting  the  whole  of  the  title, 
*  *  *  the  plaintiff  has  a  right  to  recover  damages  measured  by  the  con- 
sideration money,  the  effect  of  whose  receipt  will  be,  subject  to  the  exceptions 
hereafter  to  be  noticed,  to  revest  the  title,  such  as  it  is,  in  the  covenantor."  If 
this  be  sound  law  and  the  same  author's  further  proposition,  that  the  cove- 
nantee may  for  the  avoidance  of  circuity  of  action  detain  the  purchase  money, 
whenever  he  has  a  present  right  to  recover  damages  (Covt.  [5th  ed.l  §  333), 
be  sound,  the  conclusion  is  irresistible  that  a  clear  and  indisputable  want  of 
title  in  the  covenantor  will  justify  the  covenantee  in  detaining  the  purchase 
money,  provided  he  reconveys  the  premises  to  the  grantor.  Mr.  Rawle  prac- 
tically admits  this  conclusion,  but  adds  that  the  temptation  offered  to 
purchasers  to  ferret  out  defects  in  the  title  when  pressed  for  the  purchase 
price  is  such  as  to  induce  a  leaning  in  favor  of  the  rule  that  unless  there  has 
been  a  bona  fide  eviction,  actual  or  constructive,  the  grantee  is  without  relief. 
(Covts.  for  Title,  §  329.)  See,  also,  Rawle  Covts.  (5th  ed.)  §§  179,  185,  258, 
where  the  author  assumes  the  right  of  the  purchaser  on  breach  of  the  cove- 
nant of  seisin  to  recover  substantial  damages  before  eviction.  This  assump- 
tion is  in  aid  of  the  author's  view  that  the  covenantee  cannot,  before  or  after 
eviction,  buy  in  the  outstanding  title  and  require  the  covenantee  to  take  it  in 
satisf acton  of  the  broken  covenant.  The  reason  which  he  gives  for  that  view 
is,  that  the  covenantee  cannot  be  required  to  elect  between  the  acceptance 
of  the  after-acquired  title  and  the  recovery  of  damages  for  breach  of  the 
covenant  of  seisin  or  of  warranty,  or  to  give  up  his  right  to  rescind  the  con- 
tract by  reconveying  the  premises  to  the  grantor. 
"Rawle  Covts.  (5th  ed.)  §§  376,  378. 


DETENTION  OF  PURCHASE  MONEY.  643 

that  upon  the  same  evidence  and  for  the  avoidance  of  circuity  of 
action  he  should  be  permitted  to  detain  the  purchase  money  by 
way  of  recoupment  of  the  covenantor's  demand,  just  as  he  may 
do  upon  a  breach  of  the  covenant  of  warranty ;  and  it  is  difficult 
to  discover  any  reason  for  admitting  that  defense  in  the  one  case 
which  would  not  apply  with  equal  force  in  the  other.  If  he  paid 
the  money  over  to  the  covenantor  he  might  immediately  recover 
it  back  as  damages  for  breach  of  the  covenant.  As  this  recovery 
is  permitted  only  upon  condition  that  the  covenantee  reconvey  the 
premises  to  the  covenantor,  or  upon  the  assumption  that  the  effect 
of  a  judgment  for  the  covenantee  operates  of  itself  to  reinvest  the 
covenantor  with  such  title  as  he  conveyed,  it  is  plain  that  a  rescis- 
sion of  the  contract  is  thereby  practically  accomplished.  The 
covenantee  gets  back  his  purchase  money  and  the  premises  are 
restored  to  the  covenantor.  We  have  seen  that  the  covenantee 
may  voluntarily  surrender  the  possession  to  an  adverse  claimant, 
or  buy  in  his  rights,  if  the  adverse  title  has  been  hostilely  asserted ; 
and  that  such  action  on  his  part  amounts  to  a  constructive  eviction 
from  the  premises  and  constitutes  a  breach  of  the  covenant  of 
warranty,  entitling  him  to  recover  damages  against  the  covenantor, 
or  to  set  up  those  facts  as  a  defense  to  an  action  against  him  for 
the  purchase  money.20  In  principle  and  in  practical  results  there 
is  little  difference  between  the  exercise  of  these  rights,  and  the 
detention  of  the  purchase  money  upon  a  reconveyance  of  the  estate 
to  the  grantor  after  an  adverse  title  has  been  hostilely  asserted 
against  the  covenantee.  The  law  is  chiefly  solicitous  that  the  cove- 
nantee shall  not  enjoy  the  benefit  of  the  contract  while  evading 
its  obligations,  and  this  object  is  accomplished  by  compelling  him 
either  to  give  up  the  premises  to  the  paramount  claimant,  or  to 
surrender  them  to  the  covenantor,  or  to  apply  the  purchase  money 
to  the  removal  of  adverse  claims. 

The  virtual  rescission  of  an  executed  contract  for  the  sale  of 
lands  by  detention  of  the  purchase  money  in  an  action  at  law 
would  seem  to  be  attended  with  no  serious  difficulty  where  none, 
or  a  small  portion,  of  the  purchase  money,  has  been  paid,  and  the 
courts  have  power  to  enter  judgment  for  the  defendant,  with  con- 

»Ante,  §§  150,  187. 


644  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

dition  that  it  shall  be  inoperative  unless  he  reconvev  the  premises 
to  the  grantor.  But  much  practical  difficulty  arises  where  a  con- 
siderable part  of  the  purchase  money  has  been  paid,  for  in  most 
instances  purchasers  are  unwilling,  by  reconveying  the  premises, 
to  sacrifice  what  they  have  already  paid  in  pursuance  of  the  con- 
tract. If,  however,  the  purchaser  should  prefer  to  lose  what  he 
may  have  paid  rather  than  pay  out  more  money  for  a  bad  title,  no 
reason  is  perceived  why  he  should  not  be  permitted  to  do  so.  He 
must  either  submit  to  this  loss  or  suffer  a  constructive  eviction  bj 
compounding  with  the  adverse  claimant,  except  in  a  few  of  the 
States,  where  he  may  have  an  injunction  to  stay  the  collection  of 
the  purchase  money,  without,  it  seems,  being  required  to  convey 
the  premises  to  the  grantor,  in  view  of  the  imminency  or  extreme 
probability  of  his  eviction.21 

§  265.  QUALIFICATIONS  OF  THE  FOREGOING  RULE.  A  pur- 
chaser who  has  not  been  evicted  by  a  paramount  claimant  should 
not,  upon  a  breach  of  the  covenant  for  seisin,  be  permitted  to 
detain  the  purchase  money,  unless  he  offers  to  reconvey  the  prem- 
ises to  the  grantor,  and  ,to  make  good  to  the  latter  any  loss  or 
damage  he  may  have  sustained  by  reason  of  the  purchaser's  occu- 
pation and  possession  of  the  premises.22  Neither  should  that  right 
be  accorded  the  purchaser  unless  it  appears  that  there  is  a  moral 
certainty  of  his  eviction  by  one  whose  better  title  is  clear  and 
undisputed,  and  who  is  hostilely  asserting  that  title.  In  each  and 
every  case  in  which  this  defense  is  set  up,  the  burden  will  be  upon 
the  defendant  to  show,  by  clear  and  satisfactory  evidence,  the 
absolute  want  of  title  in  the  grantor.23  The  mere  objection  that 

"Post,  §  337. 

"Deal  v.  Dodge,  26  111.  458.  Cases  may  easily  be  supposed  in  which  the 
'  better  legal  title  is  in  a  stranger,  with  no  probability  that  it  will  ever  be 
asserted  against  the  purchaser.  Thus,  in  some  of  the  States,  neither  a  mar- 
ried woman  nor  her  heirs  are  estopped  by  her  covenant  of  warranty  front 
recovering  her  separate  estate  from  a  purchaser  who  holds  under  a  convey- 
ance by  her  not  executed  in  the  manner  required  by  statute  to  pass  her  title, 
though  the  other  heirs  may  be  in  the  full  enjoyment  of  the  consideration  of 
such  conveyance.  Instances  have  occurred  in  which  parties  who  might  have 
had  the  benefit  of  such  a  defect  have  freely  and  voluntarily  relinquished  all 
their  rights  in  the  premises. 

3  Ante,  §  117.  Vance  v.  House,  5  B.  Mon.  (Ky.)  540;  Zerfing  v.  Seelig, 
14  S.  Dak.  303;  85  N.  W.  Rep.  585. 


DETENTION  OF  PUBCHASE  MONEY.  645 

the  title  is  doubtful  or  unmarketable  should  be  no  ground  for 
detaining  the  purchase  money,  after  a  conveyance  with  covenants 
for  title  has  been  accepted.  As  was  said  by  the  court  in  a  case 
frequently  cited :  "  The  vendee  has  accepted  the  deed,  he  has 
received  possession,  he  has  enjoyed  it  without  disturbance;  he 
alone  has  stirred  up  adversary  claims,  and,  when  so  stirred,  neither 
himself  nor  the  alleged  claimants  have  been  able  to  make  good 
their  claims.  After  such  acceptance  of  the  possession  and  deed 
and  covenant  of  warranty,  a  vendee,  before  eviction  or  disturbance, 
cannot  receive  the  aid  of  a  court  of  equity  to  assist  him  to  with- 
hold the  purchase  money  or  rescind  the  contract,  but  by  taking 
on  himself  the  burden  of  showing  a  defect  in  the  title  of  the  ven- 
dor of  a  latent  character,  and  of  proving  superior  outstanding 
subsisting  adversary  rights  and  interests.24  Nor  should  the  de- 
fense of  want  of  title  be  admitted  in  any  case  in  which  the  pur- 
chaser accepted  a  conveyance  with  notice  of  the  defect;  for  while 
notice  of  a  defect  of  title  does  not  affect  the  right  of  the  purchaser 
to  recover  on  the  covenants  for  title,  it  will,  as  a  general  rule, 
deprive  him  of  the  right  to  rescind  the  contract  on  the  ground 
that  the  title  has  failed.26 

"Cooley  r.  Rankin,  11  Mo.  642.  Lewis  v.  Morton,  5  T.  B.  Mon.  (Ky.)  1. 
!•  an  action  on  a  bond  for  purchase  money  o*f  land,  the  defense  that  the 
title  was  doubtful  is  insufficient;  the  title  must  be  proven  to  be  absolutely 
bad.  Crawford  v.  Murphy,  22  Pa.  St.  84;  Schott  v.  McFarland,  1  Phil.  (Pa.) 
53.  In  Clanton  v.  Surges,  2  Dev.  Eq.  (N.  C.)  13,  a  much  cited  case,  the 
oourt,  by  RUFFIN,  J.,  after  describing  the  objection  to  the  title  on  which  the 
application  for  an  injunction  was  founded,  as  a  minute  outstanding  interest, 
dependent  upon  a  contingency,  observed  that  it  could  never  form  grounds  for 
rescinding  a  contract  "  at  the  instance  of  a  purchaser  who  is  in  possession 
under  a  conveyance  executed  with  full  covenants  for  quiet  possession,  from  a 
vendor  not  alleged  to  be  in  failing  circumstances,  who  made  on  the  treaty, 
a  full  communication  of  his  title.  To  grant  the  prayer  of  the  bill  would  be 
to  proclaim  encouragement  to  dishonest  dealing,  and  an  invitation  to  pur- 
chasers to  expose  latent  defects  in  their  vendor's  title,  instead  of  curing 
them  by  enjoyment." 

"Payne  v.  Cabell,  7  T.  B.  Mon.  (Ky.)  198.  See,  also,  Whitworth  Y. 
Stuckey,  1  Rich.  Eq.  (S.  C.)  408,  where  it  was  said:  "In  the  frequent  fluc- 
tuations of  the  commercial  prosperity  of  the  country  —  fluctuations  to  which 
our  country  seems  more  liable  than  any  other  —  there  is  a  corresponding 
fluctuation  in  the  value  of  property.  He  who  purchases  land  at  a  high  price 
will  be  tempted,  when  there  follows  a  great  fall  of  value,  to  discover  and 
bring  forward  some  claim  which  may  have  the  effect  of  ridding  him  of  his 


646  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

The  grantee  seeking  to  rescind  for  want  of  title  in  the  grantor, 
must  have  acted  promptly  on  discovery  of  the  failure  of  title,  and 
must  be  able  to  place  the  grantor  in  statu  quo.  In  a  case  in  which 
he  had  been  guilty  of  great  delay  after  discovery  of  the  want  of 
title,  and  had  also  placed  an  incumbrance  on  the  property,  he  was 
denied  relief.26 

With  these  qualifications  it  is  believed  that  little  inconvenience 
would  result  from  a  rule  which  would  permit  the  grantee  to  detain 
the  unpaid  purchase  money  upon  a  clear  breach  of  the  covenant  of 
seisin.  Without  them,  such  a  rule  would  invite  purchasers  to  find 
loopholes  by  which  to  escape  from  their  improvident  bargains, 
and  result  in  injury  to  the  entire  commonwealth  by  lessening  the 
stability  of  transactions  in  real  property. 

§  266.  BBEACH  OF  THE  COVENANT  OF  SEISIN  AS  TO  PAST  OF 
THE  PREMISES.  It  has  been  said  that  upon  a  "  partial "  breach 
of  the  covenant  of  seisin,  the  rule  limiting  the  covenantee's  recov- 
ery to  nominal  damages  before  eviction  does  not  apply,  as  where 
a  tenant  for  life  conveys  with  covenant  for  seisin  in  fee,  and  that 
in  such  a  case  the  covenantee  can  only  be  required  to  pay  the 
value  of  the  life  estate,  and  may  recoup  the  difference  between 
the  value  of  the  life  estate  and  the  fee.  The  same  authority  extends 
this  principle  to  cases  in  which  the  title  to  a  specific  part  of  the 
subject  fails.27  Treating  this  as  a  proposition  that  the  covenantee 
may  detain  the  purchase  money  pro  tanto,  though  he  has  not  been 
disturbed  in  the  possession  of  the  part  to  which  title  has  failed,  it  is 
difficult  to  perceive  upon  what  grounds  rests  the  distinction  between 

bargain.  But  this  is  a  betrayal  of  his  vendor's  title  and  against  good  faith. 
The  case  has  occurred  of  a  vendee  who,  upon  such  a  fall  of  property,  has  been 
at  great  expense  of  time,  labor  and  money,  in  seeking  information  from 
individuals  and  searching  public  offices  in  order  to  ferret  out  a  paramount 
title,  which  there  was  not  the  remotest  probability  would  ever  be  prosecuted, 
which  did  not  appear  to  be  known  to  the  person  in  whom  it  was  vested,  and 
which  there  was  hardly  a  probability  that  he  would  prosecute  successfully 
even  if  he  knew  it.  This  was  scarcely  less  than  a  fraud;  yet,  according  to 
the  doctrine  contended  for,  relief  ought  to  have  been  granted  in  such  a  case, 
for  there  was  clearly  an  outstanding  title  in  some  one."  Anderson  v.  Lincoln, 
5  How.  (Miss.)  279;  Gartman  v.  Jones,  24  Miss.  234;  Merritt  v.  Hunt,  4 
Ired.  Eq.  (N.  C.)  406;  Henry  v.  Elliott,  6  Jones  Eq.  (N.  C.)  175. 

M  Johnson  v.  Williamson.  145  Ind.  645;  43  N.  E.  Rep.  1054. 

"Rawle  Covts.  (5th  ed.)   §§  186,  187. 


DETENTION  OF  PURCHASE  MONEY.  647 

such  a  case  and  one  in  which  there  has  been  a  complete  failure 
<»f  title  to  the  entire  estate.  The  distinction  might  well  be  made 
where  the  breach  of  the  covenant  consists  in  a  diminutipn  of  the 
quantity  of  the  estate  or  interest  conveyed,  as  in  the  case  first 
mentioned,  in  which  the  covenantee  got  only  a  life  estate  instead 
-of  a  fee.  But  that  case  would  appear  to  stand  upon  different 
grounds  from  one  in  which  no  interest  whatever  in  a  part  of  the 
subject  passed.  Where  there  is  a  mere  diminution  in  the  quantity 
of  estate  conveyed,  the  covenantee  might  consistently  retain  pos- 
session of  the  premises,  while  in  the  case  last  mentioned  he  would 
not  be  permitted  to  detain  the  purchase  money  pro  tanto,  so  long 
as  he  remained  in  possession  of  the  entire  estate.  If,  however, 
the  failure  of  the  title  to  a  part  of  the  premises  were  such  as  to 
bring  the  case  within  the  rule  stated  at  the  beginning  of  this  chap- 
ter, no  reason  is  perceived  why  the  purchaser  should  not  be  allowed 
to  detain  the  purchase  money  in  the  same  proportion  which  the 
value  of  the  part  of  the  premises  to  which  the  title  has  failed 
bears  to  the  value  of  the  whole. 


CHAPTEK  XXVII. 

OF  THE  DETENTION  OR  RESTITUTION  OF  THE  PURCHASE  MONEY 
WHERE  THE  DEED  CONTAINS  NO  COVENANTS  FOR  TITLE. 

GENERAL  PRINCIPLES.     §267. 
EXCEPTION.      VOID  CONVEYANCES.    §  268. 
MERGER  OF  PRIOR  AGREEMENTS.     §  269. 
MERGER  IN  CASES  OF  FRAUD.     §  270. 

RULE   IN   PENNSYLVANIA   AS   TO   DETENTION   OF   THE  PUB- 
CHASE  MONEY.    §  271. 

§  267.  GENERAL  PRINCIPLES.  The  next  rule  which  we  shall 
state  in  respect  to  the  detention  or  recovery  back  of  the  purchase 
money,  after  the  contract  has  been  executed  by  the  delivery  and 
acceptance  of  a  conveyance,  is  as  follows: 

PBOPOSITION  V.1  //  the  contract  has  been  executed  by  a  convey- 
ance of  the  land  to  the  purchaser  without  general  covenants  for 
title,  he  can,  if  the  title  fails,  neither  recover  back*  the  purchase 

1  For  Proposition  IV,  see  ante,  §  180. 

aCo.  Litt.  384,  a,  note;  Sugd.  Vend.  (14th  Eng.  ed.)  251,  549;  2  Kent. 
Com.  (llth  ed.)  622  (473);  Rawle  Covta.  (5th  ed.)  §  321.  Maynard  v. 
Mosely,  3  Swanst.  651;  Bree  v.  Holbech,  Doug.  654;  Urmston  v.  Pate,  4 
Cruise  Dig.  90;  Tylee  v.  Webb,  14  Beav.  14;  Crippa  v.  Reade,  6  T.  R.  60C; 
Thomaa  v.  Powell,  2  Cox  Ch.  394.  United  Statea  v.  Bank  of  Ga.  10  Wh. 
(U.  S.)  433;  Union  Pac.  R.  Co.  v.  Barnes,  64  Fed.  Rep.  80.  Corbett  T. 
Dawkins,  54  Ala.  282.  Story  v.  Kemp,  51  Ga.  399.  Botsford  v.  Wilson,  75 
111.  132;  Niles  v.  Harmon,  80  111.  396;  Barry  v.  Guild,  126  111.  439;  18  N. 
E.  Rep.  759.  Major  v.  Brush,  7  Ind.  232;  Jenkinson  v.  Ewing,  17  Ind. 
505 ;  Starkey  v.  Neese,  30  Ind.  224 ;  Stratton  v.  Kennard,  74  Ind.  303.  Allen 
v.  Pegram,  16  Iowa,  172;  Weightman  v.  Spofford,  56  Iowa,  172.  In  Louis- 
iana, where  the  civil  law  prevails  and  the  rule  caveat  emptor  has  but  little 
foothold,  it  has  nevertheless  been  held  that  a  purchaser  taking  a  conveyance 
•with  special  warranty,  and  warranty  of  only  such  title  as  the  vendor  had 
under  a  particular  grant,  was  not  entitled  to  compensation  on  failure  of  the 
title  through  a  defect  not  covered  by  the  warranty.  Pilcher  v.  Prewitt,  10 
La.  Ann.  568.  Lyons  v.  Fitzpatrick,  52  La.  Ann.  697;  27  So.  Rep.  110.  To 
the  text:  Getchell  v.  Chase,  37  N.  H.  106.  Bates  v.  Delavan,  5  Paige,  Ch. 
(N.  Y.)  306;  Banks  v.  Walker,  2  Sandf.  Ch.  (N.  Y.)  348;  Whittemore  v. 
Farrington,  T  Hun  (N.  Y.),  392;  Granger  v.  Olcott,  1  Lans.  (N.  Y.)  169; 
Thorp  v.  Keokuk  Coal  Co.,  48  N.  Y.  253.  Joyce  v.  Ryan,  4  Gr.  (Me.)  101; 
Emerson  v.  Wash.  Co.,  9  Gr.  (Me.)  94;  Soper  v.  Stevens,  2  Shep.  (Me.)  133. 
Gates  v.  Winslow,  1  Mass.  65.  In  this  case  it  was  said  that  the  condition  of 


DETENTION  OK  RESTITUTION  OF  THE  PUECHASE  MONEY.       649 

money,  nor  detain9  that  which  remains  unpaid,  either  at  law  or 
in  equity;  unless  the  vendor  was  guilty  of  fraud,  or  the  contract 
was  founded  in  mistake  of  the  parties  as  to  some  fact  upon  which 
ihe  title  depended. 

This  proposition  forms,  so  to  speak,  the  most  conspicuous  land- 
mark in  the  outlines  of  the  law  defining  and  limiting  the  right  of 
the  purchaser  of  lands  to  relief  at  law  or  in  equity  in  case  the  title 
fails.  The  rule  therein  formulated  has  been  acknowledged  from 
an  early  period,  and  has  been  followed,  with  few  exceptions,  both 
in  England  and  America  down  to  the  present  time.  The  reasons 
for  the  rule  are  clear  and  satisfactory.  They  are,  in  the  first 

the  purchaser  was  the  same  as  that  of  one  who  gives  away  voluntarily  a  sum 
of  money.  Earle  v.  De  Witt,  6  Allen  (Mass.),  520.  Bemis  v.  Bridgman,  42 
Minn.  496;  44  N.  W.  Rep.  793.  Pintard  v.  Martin,  1  Sm.  &  M.  Ch.  (Miss.) 
126.  Higley  v.  Smith,  1  Chip.  (Vt.)  409.  Maynard  v.  Moseley,  3  Swanst. 
855  (reported  from  Lord  NOTTINGHAM'S  MSS.),  where  it  was  said  by 
that  eminent  jurist  that  although  the  purchaser  had  been  evicted,  "  yet 
he  that  purchases  lands  without  any  covenants  or  warranties  against  prior 
titles,  as  here,  where  the  defendants  sold  only  their  own  title,  if  the  land 
be  afterward  evicted  by  an  older  title,  can  never  exhibit  a  bill  in  equity  to 
have  his  purchase  money  again  upon  that  account;  possibly  there  may  b« 
equity  to  stop  the  payment  of  such  purchase  money  as  is  behind,  but  never  to 
recover  what  is  paid,  for  the  chancery  mends  no  man's  bargain,  though  it 
sometimes  mends  his  assurance;  and  it  cannot  be  truly  said  that  the  de- 
fendants keep  the  money  for  nothing,  since  they  have  done  all  which  was 
agreed  to  be  done  for  it,  but  if  the  plaintiff  had  bought  that  which  falls  out 
to  be  worth  nothing,  he  can  complain  of  none  but  himself."  In  Bree  v.  Hol- 
bech,  Doug.  654,  a  leading  English  case,  a  personal  representative  found 
among  the  papers  of  his  testator  a  mortgage  deed,  and  assigned  it  for  the 
mortgage  money,  affirming  and  reciting  in  the  deed  of  assignment  that  it  was 
a  mortgage  deed  made  or  mentioned  to  be  made  between  the  mortgagor  and 
mortgagee  for  that  sum.  It  was  decided  that  the  assignee  could  not  recover 
back  the  mortgage  money,  though  the  mortgage  was  a  forgery,  unless  tlie 
assignor  knew  it  to  be  a  forgery.  The  question  was  whether  there  was  any 
fraud.  If  the  personal  representative  had  discovered  the  forgery  and  then 
assigned  the  mortgage  as  a  true  security  it  would  have  been  different.  He 
did  not  covenant  for  the  goodness  of  the  title,  but  only  that  neither  he  nor 
the  testator  had  incumbered  the  estate.  It  was  incumbent  on  the  assignee  to 
look  to  the  goodness  of  it. 

81  Sugd.  Vend.  (14th  Eng.  ed.)  251;  (2d  id.)  549,  552;  Rawle  Covt*. 
(5th  ed.)  §  321.  Roswall  v.  Vaughan,  2  Cro.  196.  Greenleaf  v.  Cook,  2  \Vh. 
(U.  S.)  13;  Noonan  v.  Lee,  2  Black  (U.  S.)  499;  Buckner  v.  Street,  15  Fed. 
Rep.  365.  Griel  v.  Lomax,  86  Ala.  135;  5  So.  Rep.  325,  ob.  diet.;  Strong  v. 
Waddell,  56  Ala.  471.  Crowell  v.  Packard,  35  Ark.  348;  Alexander  v. 
McCauley,  22  Ark.  553.  Reese  v.  Gordon,  19  Cal.  147;  Hastings  v.  O'Donnell, 


650  MAKKETABLE    TITLE    TO    EEAL    ESTATE. 

place,  that  a  purchaser  who  has  failed  to  protect  himself  by  de- 
manding appropriate  covenants,  is  not  entitled  to  relief;  and,  in 
the  second  place,  that  if  covenants  were  demanded  and  refused, 
the  vendor  should  not  be  held  liable  for  defects,  the  risk  of  which 
he  expressly  declined  to  assume.  The  purchaser  is  still  less  en- 
titled to  relief  if  he  makes  a  catching  bargain,  that  is,  agrees  to 
assume  the  risk  of  the  title,  and  to  accept  a  conveyance  without 
covenants.4  "  Such  deeds,"  it  has  been  said,  "  are  made  because 
the  vendor  is  unwilling  to  warrant  the  title;  they  are  accepted 
because  the  grantee  is  willing  to  take  the  hazard  of  the  title  and 
believes  it  worth  the  price  he  pays  for  it,  or  agrees  to  pay."5  These 
observations  undoubtedly  apply  with  full  force  in  a  locality  in 
which  it  is  customary  to  give  general  covenants  of  warranty,  but 

40  C'al.  198.  Barkhamstead  v.  Case,  5  Conn.  528;  13  Am.  Dec.  92.  McDonald 
v.  Beall,  55  Ga.  288.  Patten  v.  Stewart,  24  Ind.  332;  Bethell  v.  Bethell  92 
Ind.  318;  Gibson  v.  Richart,  83  Ind.  313.  Homer  v.  Lowe,  159  Ind.  406; 
64  N.  E.  Rep.  218.  Brandt  v.  Foster,  5  Cl.  (lo.)  287.  Butler  v.  Miller,  15 
B.  Mon.  (Ky.)  627.  Middleskauff  v.  Barrick,  4  Gill  (Md.),  290;  Smith  T. 
Chancy,  4  Md.  Ch.  246.  Mitchell  v.  Christopher,  (Minn.)  58  N.  W.  Rep.  873; 
Hulett  y.  Hamilton,  (Minn.)  61  N.  W.  Rep.  672;  Insurance  Co.  v.  Marshall, 
(Minn.)  57  N.  W.  Rep.  658.  A  rule  varying  from  that  stated  in  the  text 
exists  in  the  State  of  Pennsylvania.  See  post,  this  chapter,  §  632.  Mclntyrt 
v.  Long,  71  Tex.  86;  8  S.  W.  Rep.  622;  Heisch  v.  Adams,  (Tex.)  16  S.  W. 
Rep.  790.  Scott  v.  Slaughter  (Tex.  Civ.  App.),  80  S.  W.  Rep.  643.  Commth. 
v.  McClanachan,  4  Rand.  (Va.)  482.  In  Scudder  v.  Andrews,  2  McL.  (U.  S.) 
464,  n,  nrd  Wiley  v.  White,  3  Stew.  &  P.  (Ala.)  355.  Gray  v.  Ward  (Tenn. 
Ch.  App.),  52  S.  W.  Rep.  1028,  and  perhaps  in  a  few  other  cases,  besides 
the  Pennsylvania  and  South  Carolina  decisions  hereafter  noticed,  there  art 
dicta  to  the  effect  that  the  purchase  money  may  be  detained  on  failure  of  the 
title,  notwithstanding  the  absence  of  covenants  in  the  coveyance.  There  ar« 
no  authorities  cited  in  support  of  these  intimations.  In  Louisiana  where  the 
rule  caveat  emptor,  owing  to  the  prevalence  of  the  civil  law  in  that  State, 
has  but  little  foothold,  it  has  nevertheless  been  held  that  a  purchaser  with 
special  warranty  and  notice  of  a  government  suit  affecting  the  title,  who  has 
never  been  evicted  and  probably  never  will  be,  and  who  has  not  impugned  his 
vendor's  title,  cannot  insist  on  security  against  hostile  claims.  Pilcher  T. 
Prewitt,  10  La.  Ann.  568.  Medina  v.  Soughton,  1  Salk.  211,  per  Lord  HOLT: 
"  If  the  seller  of  goods  have  not  the  possession,  it  behooves  the  purchaser 
to  take  care,  caveat  emptor,  to  have  an  express  warranty,  or  a  good  title; 
and  so  it  is  in  the  case  of  land,  whether  the  seller  be  in  or  out  of  possession, 
for  the  seller  cannot  have  them  without  a  title,  and  the  buyer  is  at  his  peril 
to  see  to  it." 

4 Breckenridge  v.  Waters,  5  T.  B.  Mon.  (Ky.)  150;  17  Am.  Dec.  46;  Butler 
v.  Miller,  15  B.  Mon.  (Ky.)  617. 

1  McNeal  v.  Calkins,  50  111.  App.  17. 


DETENTION  OK  BESTITUTION  OF  THE  PURCHASE   MONEY.       651 

lose  much  of  their  application  wherever  it  is  the  custom  to  give 
only  a  quit  claim,  or  a  conveyance  with  limited  or  special  cove- 
nants for  title.  In  the  former  case  it  is  a  fair  presumption  that 
the  attention  of  the  parties  was  drawn  to  the  state  of  the  title,  and 
that  the  purchaser  expressly  bought  merely  such  title  as  the  ven- 
dor had.  In  the  latter  case,  that  is,  where  it  is  customary  to  give 
only  limited  covenants,  no  presumption  that  the  defective  title 
was  considered  in  the  bargain  necessarily  arises.  The  purchase 
price  agreed  to  be  paid  will  generally  be  a  fair  test  of  the  real 
understanding  of  the  parties  in  this  respect.  If  the  purchaser 
pays  the  full  fee  simple  market  value  of  the  premises,  it  could 
hardly  be  presumed  that  he  knew  the  title  was  questionable,  but 
was  nevertheless  willing  to  pay  as  much  for  a  clouded  title  as  for 
one  undoubtedly  clear.  These  considerations  have,  in  one  of  the 
States  at  least,  led  to  a  great  relaxation  of  the  rule  stated  at  the 
beginning  of  this  chapter,  with  respect  to  the  right  of  the  grantee 
to  detain  the  unpaid  purchase  money  where  the  title  has  failed.' 
But  the  rule  of  the  common  law  and  that  which  prevails  in  most 
of  the  American  States  is,  without  question,  that  "  a  vendor  selling 
in  good  faith  is  not  responsible  for  the  goodness  of  his  title,  beyond 
the  extent  of  the  covenants  in  his  deed.  This  rule,  experience  has 
shown,  reconciles  the  claims  of  convenience  with  the  duties  of 
good  faith.  The  purchaser  is  stimulated  to  employ  vigilance  and 
care  in  reference  to  the  things  as  to  which  they  will  secure  him 
from  injustice,  while  it  affords  no  shelter  for  bad  faith  on  either 
part."7 

The  rule  is  thus  laid  down  by  Sugden :  "  If  one  sells  another's 
estate,  without  covenant  or  warranty  for  the  enjoyment,  it  is  at 
the  peril  of  him  who  buys,  because,  the  thing  being  in  the  realty, 
he  might  have  looked  into  the  title,  and  there  is  no  reason  he 
should  have  an  action  by  the  law  where  he  did  not  provide  for 
himself."  This  is  one  of  the  plainest  applications  of  the  maxim 
caveat  emptor*  For  the  purposes  of  this  rule  a  quit-claim  con- 
veyance, or  a  conveyance,  with  "  special  warranty,"  or  limited 
covenants  for  title,  is  the  same  as  a  conveyance  without  covenants 

•Post,  §  271. 

'Language  of  the  court  in  Refeld  v.  Woolfolk,  22  How.  (U.  S.)  328. 

•1  Sugd.  Vend.   (8th  Am.  ed.)   534   (356). 


652  MARKETABLE    TITLE    TO    REAL    ESTATE. 

for  title,  unless  the  defect  of  which  the  grantee  complains,  was 
caused  by  the  act  of  the  grantor  or  some  one  claiming  under  him.9 
So,  if  the  warranty  be  against  a  particular  specified  claim,  the 
covenantee  cannot  complain  of  the  loss  of  the  land  through  other 
claims.10 

If  the  purchaser  accept  a  deed  without  covenants  for  title,  that 
is,  a  mere  quit-claim,  the  fact  that  he  did  so  under  protest,  claim- 
ing the  right  under  his  contract  to  require  a  deed  with  a  covenant 
against  the  grantor's  acts,  has  been  held  not  to  entitle  him  to 
detain  the  purchase  money  on  failure  of  the  title  and  loss  of  part 
of  the  premises ;  even  though  the  defect  in  the  title  consisted  of  a 
prior  conveyance  by  the  vendor  himself.11 

In  some  cases  it  has  been  strongly  contended  that  a  sale  of 
lands  in  which  it  does  not  appear  that  the  vendor  was  aware  of 
the  infirmity  of  his  title,  establishes  a  case  of  mistake  as  to  the 
title,  and  affords  ground  for  relief  if  the  vendor  conveyed  with 
special  or  limited  covenants.  Such  a  doctrine  would  provide  an 
escape  for  the  purchaser  from  nearly  every  improvident  bargain, 
if  the  title  should  be  faulty,  and  the  better  opinion  seems  to  be 
that  the  vendee  taking  a  quit-claim  deed,  is  entitled  to  no  relief 
on  the  ground  of  mistake,  unless  the  mistake  is  as  to  the  existence 
or  non-existence  of  some  particular  fact  upon  which  the  validity 
of  the  vendor's  title  depends.  The  vendor  may  feel  assured  of 
the  sufficiency  of  his  title,  yet  be  unwilling  to  insure  the  purchaser 
against  recondite  claims,  which  the  most  searching  investigation 
might  fail  to  disclose.12  If  the  deed  contain  special  or  limited 
covenants  only,  and  it  was  executed  in  a  locality  or  section  where 

*  Cross  v.  Noble,  67  Pa.  St.  78. 

"Terrell  v.  Herron,  4  J.  J.  Marsh.  (Ky.)  519;  Breckenridge  v.  Waters,  5 
T.  B.  Mon.  (Ky.)  154;  17  Am.  Dec.  46;  Morrison  v.  Caldwell,  5  T.  B.  Mon. 
(Ky.)  439;  17  Am.  Dec.  84. 

"Porter  v.  Cook,  114  Wis.  60;   89  N.   W.   Rep.  823. 

"Clare  v.  Lamb,  10  L.  R.,  C.  P.  334.  In  Hitchcock  v.  Giddings,  4  Price, 
135,  where  relief  was  granted  on  the  ground  of  mistake,  a  remainder  man  had 
sold  his  interest  in  ignorance  of  the  fact  that  the  remainder  had  been  barred 
by  a  common  recovery  suffered  by  a  tenant  in  tail.  This  was  upon  the 
principle  that  if  A.  sell  property  to  B.,  under  the  impression  that  it  is  still 
in  existence,  when,  in  fact,  it  has  been  destroyed,  there  is  a  mistake  of  fact 
which  entitles  B.  to  detain  or  recover  back  the  purchase  money.  See  post, 
ch.  35,  "Mistake." 


DETENTION  OE  KESTITUTION  OF  THE  PUECHASE  MONET.       653 

the  practice  is  to  insert  general  covenants,  it  will  be  presumed 
that  the  parties  knew  or  suspected  that  the  title  was  defective, 
and  that  the  purchaser  agreed  to  take  merely  such  title  as  the 
vendor  could  make.18  It  has  also  been  contended  that  the  grantee 
should  be  permitted  to  recover  back  the  purchase  money  when  he 
loses  the  estate,  without  regard  to  the  question  of  covenants  for 
title,  upon  the  principle  of  the  common  law  enounced  in  the  case 
of  Moses  v.  McFerlan,  that  assumpsit  will  lie  in  any  case  to  re- 
cover money  which  the  defendant,  ex  asquo  et  bono,  ought  not  to 
retain  in  his  hands.14  But  it  is  generally  considered  that  this  rule 
must  be  subordinated  to  that  other  principle  of  the  common  law, 
caveat  emptor. 

The  rule  that  a  purchaser  who  has  taken  no  covenants  for  title 
can  have  no  relief  if  evicted  from  the  premises  by  one  having  a 
better  right,  is  satisfactory  in  all  cases  in  which  it  appears  that 
the  purchaser  intended  to  accept  the  risks  of  a  defective  title,  pro- 
vided that  rule  be  limited  to  cases  in  which  the  estate  is  lost 
through  a  defect  in  the  title  proper,  that  is,  through  the  assertion 
of  an  outstanding  paramount  title  in  a  stranger.  But  it  is  not 
easy  to  perceive  any  sound  reason  why  a  purchaser  who  pays  off 
a  prior  incumbrance  on  the  land,  or  who  redeems  from  a  pur- 
chaser under  such  incumbrance,  should  not  be  surrogated  to  the 
rights  of  the  incumbrancer  without  regard  to  the  existence  or  non- 
existence  of  covenants  for  title  in  the  conveyance  under  which  he 
holds,  and  allowed  to  set  off  the  incumbrances  against  the  unpaid 
purchase  money.  The  doctrine  of  subrogation  is  the  creature  of 
equity,  and  is  in  no  wise  dependent  upon  any  contract  or  covenant 
between  the  parlies.15  The  incumbrancer  might  subject  the  estate 
in  the  hands  of  the  vendor  to  the  payment  of  his  debt,  and  his 
assignee  would  have  the  same  right.  Inasmuch,  then,  as  any  per- 
son buying  the  incumbrance,  or  paying  it  off,  other  than  a  mere 
volunteer,  would  be  accorded  that  right,  justice  would  seem  to 

11  Oliver  v.  Piatt,,  3  How.  (U.  S.)  410.  Miller  v.  Fraley,  23  Ark.  743.  Wood- 
folk  v.  Blount,  3  Hayw.  (Tenn.)  147;  9  Am.  Dec.  736;  Lowry  v.  Brown,  1 
Coldw.  (Tenn.)  459. 

"2  Burr.  1012. 

tt  Sheldon  Subrogation,  ch.  1.  Compare,  Hancock  v.  Wiggins,  28  Ind.  App. 
449;  63  N.  E.  Rep.  242. 


654  MAEKETABLE    TITLE    TO    EEAL    ESTATE. 

require  that  a  purchaser,  paying  off  the  incumbrance  to  protect 
his  estate,  should  be  treated  as  an  equitable  assignee  of  the  rights, 
powers  and  privileges  of  the  incumbrancer,  though  he  took  a  con- 
veyance without  covenants  for  title;  unless,  indeed,  it  should 
appear  that  the  existence  of  the  incr.mbrance  was  known  to  him 
and  influenced  the  consideration  of  the  conveyance. 

It  is  suggested  that  in  those  localities  in  which  it  is  the  custom 
to  convey  with  special  warranty  only,  the  purchaser  should  insist 
upon  a  provision  in  the  conveyance  by  which  he  would  have  the 
right  to  detain  the  purchase  money  and  surrender  the  estate  to 
the  vendor,  if  a  paramount  title  thereto  should  be  asserted  in  the 
future.  Many  vendors,  who  are  unwilling  to  convey  with  general 
warranty,  would  doubtless  consent  to  such  a  provision.  But  if 
such  an  agreement  should  be  made,  care  should  be  taken  to  see 
that  it  is  actually  inserted  in  the  conveyance.  We  shall  see  that 
similar  agreements,  forming  part  of  the  executory  contract  of  sale, 
have  been  held  to  be  merged  in  a  conveyance  of  the  premises  with- 
out warranty,  and  were,  therefore,  unavailable  to  the  purchaser 
where  evicted  by  an  adverse  claimant.16 

§  268.  EXCEPTION.  VOID  CONVEYANCE.  An  exception  to  the 
rule  that  the  purchaser  cannot  recover  back  or  detain  the  purchase 
money  in  a  case  where  he  has  taken  a  conveyance  without  cove- 
nants for  title  has  been  held  to  exist  in  those  cases  where  for  want 
of  authority  in  the  vendor  to  convey  the  deed  is  absolutely  void,17 
as  where  the  sale  and  conveyance  was  made  by  an  assignee  in 
bankruptcy  who  had  no  authority  for  want  of  jurisdiction  in  the 
court  to  appoint  him.18  So,  also,  where  the  grantor,  an  adminis- 
trator, had  acquired  title  by  purchasing  the  premises  at  his  own 
sale  and  had  paid  the  purchase  money  out  of  the  funds  of  the 
estate.19  So,  where  a  married  woman,  who  had  not  been  privily 
examined  when  she  joined  her  husband  in  executing  a  deed, 

"Post,  §  269. 

"Shearer  v.  Fowler,  7  Mass.  31;  Williams  v.  Reed,  5  Pick.  (Mass.)  480, 
where  the  question  rose  upon  a  garnishment  of  the  vendor  by  a  creditor  of 
the  vendee,  the  creditor  claiming  that  the  vendee  was  entitled  to  a  return  of 
the  purchase  money,  and  seeking  to  subject  it  to  his  claim.  Dill  v.  Ware- 
ham,  7  Met.  (Mass.)  438.  Holden  v.  Curtis,  2  N.  H.  61. 

"Earle  v.  Beckford,  6  Allen  (Mass),  549;  83  Am.  Dec.  651. 

"Beck  v.  Ulrich,  13  Pa.  St.  636;  53  Am.  Dec.  507. 


DETENTION  OK  RESTITUTION  OF  THE  PURCHASE  MONEY.      655 

ejected  the  purchaser,  the  representatives  of  the  husband  were  re- 
strained from  collecting  the  purchase  money.20  It  has  been  held 
that  if  the  grantor  be  a  married  woman,  and  her  deed  be  void 
for  non-joinder  of  her  husband  or  other  reason,  the  purchaser 
cannot  recover  back  the  purchase  money  from  her,  unless  the  same 
remains  undisposed  of  in  her  hands,  or  has  been  converted  into 
other  property  so  that  it  can  be  traced.21  The  rule  that  the 
grantee  is  entitled  to  no  redress  where  the  deed  does  not  contain 
covenants  for  title,  does  not  apply  where  the  conveyance  was  of 
lands  forming  a  part  of  the  public  domain  to  which  the  grantor 
had  no  title.  The  reason  for  this  exception  is  that  public  lands 
cannot  be  made  the  subject-matter  of  private  contract,  and  such 
a  conveyance,  being  utterly  void,  the  grantee  therein  is  entitled 
to  have  the  purchase  money  restored,  and  he  may  recover  it  back 
in  assumpsit22 

These  principles  have  been  extended  to  a  case  in  which  the  void 
conveyance  contained  covenants  for  title,  and  the  grantee  had  not 
been  disturbed  in  the  possession.  In  that  case,  the  conveyance  was 
by  an  officer  of  a  court  under  an  order  which  was  void  for  want  of 
jurisdiction.  It  was  held  that  the  grantee  might  detain  the  pur- 
chase money,  though  the  conveyance  contained  covenants  for  title, 

20  Lane  v.  Patrick,  3  Murph.   (N.  C.)   473. 

"Scott  v.  Battle,  85  N.  C.  184,  191;  39  Am.  Rep.  694,  where  it  was  said: 
"  If  in  a  case  like  the  present  a  feme  covert  should  retain  and  have  actually 
in  hand  the  money  paid  her  as  the  consideration  for  her  imperfect  and  dis- 
affirmed contract,  her  vendee  would  be  permitted  to  recover  the  same  at  law, 
or  if  she  had  converted  it  into  other  property  so  as  to  be  traceable,  he  might 
pursue  it  in  its  new  shape  by  a  proceeding  in  rem,  and  subject  it  to  the  satis- 
faction of  his  demand.  But  if  she  has  consumed  it,  as  it  is  admitted  this 
plaintiff  has  done,  the  party  paying  it  is  without  remedy;  and  this  because 
of  the  policy  of  the  law  which  forbids  all  dealings  with  femes  covert,  unless 
conducted  in  the  manner  prescribed  by  the  statute,  and  which  throws  the 
risk  in  every  such  case  upon  the  party  that  knowingly  deals  with  her."  See, 
also,  Martin  v.  Dwelly,  6  Wend.  (N.  Y.)  9;  21  Am.  Dec.  245.  Jones  v. 
Cohen,  82  N.  C.  75,  81.  A  contrary  view  to  the  above  was  taken  in  Shroyer 
v.  Nickell,  55  Mo.  264,  where  it  was  held  that  a  feme  covert  grantor,  suing 
to  recover  the  premises,  her  deed  being  void  for  want  of  proper  acknowledg- 
ment, must  refund  the  purchase  money,  and  judgment  in  her  favor  was  made 
conditional  upon  such  repayment.  This  seems  the  more  equitable  view. 

a  Lamb  v.  James,  8  Tex.  485,  citing  Garber  v.  Armentrout,  32  Grat.  (Va.) 
235.  Lawson's  Rights  &  Rem.  §  3691. 


656  MABKETABLE    TITLE    TO    EEAL    ESTATE. 

and  the  grantee  had  not  been  evicted  or  disturbed  by  adverse 
claimants.28 

The  rule  that  the  purchaser  cannot  recover  back  the  purchase 
money  when  the  contract  has  been  performed  on  the  part  of  the 
vendor  by  the  execution  of  a  conveyance,  does  not  apply  where  the 
conveyance  is  rejected  by  the  vendee  as  being  insufficient  and  not 
such  as  he  is  entitled  to  receive  under  the  contract.24 

§  269.  MERGER  IN  THE  CONVEYANCE  OF  ALL  AGREEMENTS 
RESPECTING  THE  TITLE.  All  agreements  between  the  parties 
respecting  the  title,  whether  verbal  or  in  writing,  are,  as  a  general 
rule,  merged  in  the  conveyance  of  the  premises ;  so  that,  notwith- 
standing an  agreement  by  the  vendor  that  the  purchase  money 
should  be  applied  to  the  removal  of  adverse  claims,  or  should  be 

2SPuckett  v.  McDonald,  6  How.  (Miss.)  269.  The  court  said  in  this  case: 
"  We  freely  admit  the  doctrine  that  where  the  vendee  of  land  is  let  into 
possession  under  a  deed  with  full  covenants,  and  there  has  been  no  eviction 
nor  any  fraud,  that  he  cannot  resist  the  payment  of  the  purchase  money  on 
the  alleged  ground  of  a  defect  of  title.  In  such  case,  he  is  driven  to  his 
remedy  upon  the  covenants  in  his  deed.  This  case,  however,  is  widely  differ- 
ent from  those  where  this  doctrine  is  applied.  Here  the  vendors  were  only 
acting  as  trustees  in  carrying  into  execution  an  order  of  the  probate  court. 
That  order  is  void,  and  consequently  nothing  passes  or  can  pass  by  their 
subsequent  act.  The  sale  is  virtually  made  by  the  court,  and  the  admin- 
istrators act  only  as  commissioners  to  execute  the  order  of  sale.  Their 
covenants  in  such  circumstances  cannot  furnish  a  foundation  upon  which 
an  action  can  be  maintained  against  them  personally,  nor  any  protection  to 
the  vendee;  nor  can  the  vendee  be  supposed  to  place  any  reliance  upon  such 
assurances,  since  the  contract  itself,  from  its  nature,  is  intended  to  convey 
only  the  title  of  the  deceased  (the  sale  of  the  decedent's  lands  had  beca 
ordered  on  an  ex  parte  application  of  his  administrators  without  notice  to 
the  heirs).  The  purchaser  must  necessarily  in  such  case  rely  upon  the  title 
of  the  deceased,  and  the  validity  of  the  order  of  sale  by  the  court.  This  view 
of  the  subject  appears  to  be  fully  sustained  by  the  authorities.  See  2  Stew. 
(Ala.)  335  (Wiley  v.  White)  ;  8  Mass.  46  'Bliss  v.  Negus).  It  ia  absolutely 
roid,  and  so  shown  to  be  by  the  record  of  the  court.  No  eviction  is,  therefore, 
necessary,  since  the  paramount  title  of  the  heirs  is  as  effectually  established 
by  the  evidence  as  it  could  be  by  the  record  of  eviction."  See,  as  to  the 
necessity  of  surrender  of  the  premises  in  the  case  of  a  void  executory  con- 
tract, ante,  §  263. 

"Guttschlick  v.  Bank  of  the  Metropolis,  5  Cranch  (C.  C.),  435.  In  this 
case,  it  seems  that  the  purchaser  rejected  the  deed  on  the  ground  of  in- 
sufficient execution  by  the  vendor,  a  bank,  the  deed  being  from  the  president 
of  the  bank,  under  his  private  seal,  and  not  under  the  seal  of  the  corporation. 
The  court  said  that  the  purchaser  might  offer  the  deed  in  evidence  with  other 
facts  showing  the  title  to  be  defective. 


DETENTION   OR  RESTITUTION  OF  THE   PURCHASE   MONET.       657 

withheld  if  the  title  failed,  the  purchaser,  accepting  a  conveyance 
without  covenants  for  title,  will,  in  the  absence  of  fraud  or  mis- 
take, be  compelled  to  pay  the  purchase  money.25  And  promises, 
express  or  implied,  to  give  a  good  title  are  merged  in  a  conveyance 

15  Rawle  Covts.  (5th  ed.)  §  320.  Howes  v.  Barker,  3  Jonhs.  (N.  Y.)  506; 
3  Am.  Dec.  526,  where  it  was  held  that  this  rule  prevented  the  purchaser 
from  showing  that  there  was  a  mistake  in  the  quantity  of  land  conveyed, 
and  from  maintaining  an  action  of  assumpsit  to  recover  the  deficiency.  Fol- 
lowed in  Houghtaling  v.  Lewis,  10  Johns.  (N.  Y.)  297,  and  Bull  v.  Willard, 
9  Barb.  (N.  Y.)  641,  upon  similar  facts.  The  presumption  of  law  is,  that 
the  acceptance  of  a  deed  in  pursuance  of  articles  is  satisfaction  of  all  pre- 
vious covenants,  and  where  the  conveyance  contains  none  of  the  usual  cove- 
nants, the  law  supposes  that  the  grantee  agreed  to  take  the  title  at  his 
risk,  or  else  that  he  would  have  rejected  it  altogether.  Share  v.  Anderson, 
7  Serg.  &  Rawle  (Pa.),  43;  10  Am.  Dec.  421,  where  the  promise  was  to  in- 
demnify the  purchaser  against  incumbrances.  Crdtzer  v.  Russell,  9  Serg.  & 
R.  (Pa.)  78;  Ludwick  v.  Huntzinger,  5  W.  &  D.  (Pa.)  51;  Shontz  v.  Brown, 
27  Pa.  St.  131,  where  it  was  held  that  a  bond  to  convey  an  indefeasible  title 
was  merged  in  a  conveyance  with  special  warranty.  These  cases  seem  incon- 
sistent with  later  Pennsylvania  decisions.  See  Close  v.  Zell,  141  Pa.  St.  390; 
21  Atl.  Rep.  770;  Whitemore  v.  Farrington,  7  Hun  (N.  Y.),  592;  Griffith  v. 
Kempshall,  1  Clark  Ch.  (N.  Y.)  571.  Earle  v.  De  Witt,  6  Allen  (Mass.), 
f>20;  Willfems  v.  Hathaway,  19  Pick.  (Mass.)  387.  Bever  v.  North,  107  Ind. 
545;  8  N.  E.  Rep.  576;  Philbrook  v.  Emswiler,  92  Ind.  590;  Ice  v.  Ball,  102 
Ind.  42;  IN.  E.  Rep.  66.  Thompson  v.  Christian,  28  Ala.  399.  Seitzinger 
v.  Weaver,  1  Rawle  (Pa.),  377;  Jones  v.  Wood,  16  Pa.  St.  25.  Compare 
S.-lden  v.  Williams,  9  Watts  (Pa.),  12;  Brown  v.  Morehead,  8  S.  &  R.  (Pa.) 
5G9;  Anderson  v.  Long,  10  S.  &  R.  (Pa.)  55,  and  Pennsylvania  cases  cited 
infra,  this  section.  In  Johnson  v.  Hathorn,  3  Keyes  (N.  Y.),  126,  it  was 
held  that  an  executory  agreement,  whether  written  or  oral,  is  not  merged  in 
a  subsequent  writing  by  way  of  partial  execution,  unless  the  lattter  is  ac- 
cepted in  substitution  or  in  full  performance  of  the  contract.  In  Coleman  v. 
Hart,  25  Ind.  256,  it  was  said  that  if  the  agreement  was  verbal  it  would  be 
merged  in  the  covenants  of  the  deed;  and  this  upon  the  familiar  principle 
that  a  written  contract  is  conclusively  presumed  to  include  all  contempo- 
raneous agreements  between  the  parties.  The  rule  under  consideration,  how- 
ever, obviously  depends  upon  a  different  principle  of  wider  application,  which 
is  that  the  conveyance  is  a  second  contract  of  a  solemn  character,  superseding 
i.il  former  contracts  relating  to  the  title,  whether  verbal  or  in  writing.  In 
Kramer  v.  Ricke,  70  Iowa,  535;  25  N.  W.  Rep.  278,  there  was  a  conveyance 
\\ith  warranty  to  the  purchaser,  and  a  contemporaneous  agreement  in  writing 
by  the  vendor  to  remove  all  adverse  claims  at  his  own  expense.  In  an  action 
for  the  purchase  money  the  purchaser  defended  on  the  ground  that  the 
plaintiff  had  not  perfected  the  title  as  agreed,  and  the  agreement  in  question 
was  admitted  in  evidence.  The  question  of  merger  of  the  agreement  in  the 
conveyance  was  not  raised ;  the  court  and  the  parties  seem  to  have  assumed 
that  the  agreement  was  properly  admitted  in  evidence.  In  a  case  in  which 

42 


658  MARKETABLE    TITLE    TO    REAL    ESTATE. 

without  covenants.2*  This  doctrine  has  also  been  applied  in  exon- 
eration of  the  purchaser.  Thus,  it  has  been  held  that  an  agree- 
ment of  the  purchaser  to  erect  a  building  of  a  certain  value  on  the 
granted  premises,  was  merged  in  a  conveyance  of  the  premises 
subsequently  made,  in  which  such  agreement  was  not  mentioned.27 

The  case  of  Smith  v.  Chaney28  affords  a  good  illustration  of  this 
rule.  There  the  vendor  had  agreed  in  writing  at  the  time  of  the 
sale  to  abate  the  purchase  money  in  proportion  to  the  quantity  of 
the  land  sold  of  which  peaceable  possession  could  not  be  given. 
Afterwards  the  purchaser  accepted  a  conveyance  of  the  premises 
without  covenants,  and  having  lost  a  part  of  the  land  through 
defect  of  title,  sought  to  restrain  the  collection  of  the  purchase 
money  by  injunction,  but  the  court  said :  "  This  deed  must  be 
understood  as  taking  the  place  of  all  previous  agreements  upon  the 
subject,  and  as  containing  the  full  and  entire  contract  of  the 
parties ;  and  yet  we  do  not  find  in  it  any  covenant  in  regard  to  the 
title  of  the  vendor.  It  seems  to  me  that  if  the  purchaser  had 
designed  to  guard  himself  against  an  apprehended  deficiency  in 
the  number  of  acres,  or  any  other  defect  in  the  title,  to  the  whole  or 
any  part  of  the  land,  he  should  have  taken  care  to  have  had  proper 
covenants  inserted  in  the  deed." 

The  foregoing  rule  has  been  greatly  modified  in  the  State  of 
Pennsylvania.  It  will  be  seen  hereafter  that  a  peculiar  doctrine 
obtains  in  that  State  by  which  a  purchaser  who  has  taken  a  convey- 

the  purchaser  took  a  quit-claim  deed  of  the  premises,  knowing  that  there 
was  a  defect  in  the  title,  and  the  vendor  by  a  separate  writing  agreed  to 
perfect  the  title,  but  without  specifying  any  time  therefor,  and  the  purchaser, 
at  the  request  of  the  vendor,  executed  his  note  to  a  third  person  for  the  pur- 
chase money,  it  was  held  that  the  giving  of  the  note  to  a  third  party  and 
the  taking  of  the  obligation  of  the  vendor  was  a  waiver  of  any  defense  to  the 
note  on  account  of  the  defective  title,  and  that  if  the  purchaser  had  any 
remedy  it  was  upon  the  obligation  of  the  vendor.  The  question  of  merger 
of  this  obligation  in  the  quit  claim  was  not  raised.  James  v.  Hays,  34 
Ind.  272. 

"Clark  v.  Post,  113  N.  Y.  17;  20  N.  E.  Rep.  573. 

47  West  Broadway  Real  Est.  Co.  v.  Bayliss,  (Md.)  31  Atl.  Rep.  442.  The 
question  how  far  this  decision  is  in  conflict  with  the  rule  that  collateral 
stipulations  of  which  the  deed  is  not  necessarily  a  performance  are  not 
merged  therein,  deserves  consideration.  Post,  this  chapter. 

"  4  Md.  Dec.  246. 


DETENTION  OR  RESTITUTION  OF  THE  PURCHASE  MONEY.       659 

ance  without  covenants  for  title  in  ignorance  of  any  objections  to 
the  title  is  permitted  to  detain  the  purchase  money  upon  failure  of 
the  title.29  Another  class  of  decisions  there,  having  no  necessary 
connection  with  this  doctrine,  establish  the  rule  that  an  agreement 
by  the  vendor  to  remove  incumbrances  on  the  premises,  or  to  re- 
fund the  purchase  money  if  the  title  should  fail,  and  to  reimburse 
the  vendee  for  all  costs  and  expenses  incurred,  will  not  be  merged 
in  a  deed  containing  a  covenant  of  special  warranty,  but  no  cove- 
nant which  would  embrace  such  agreement;  and  that  if  the  title 
should  fail  or  incumbrances  should  appear  the  purchaser  may  not 
only  detain,  but  may  recover  back  the  purchase  money.  Such  an 
agreement  is  there  considered  to  be  independent  of  and  collateral 
to  the  deed,  whether  made  before  or  after  the  execution  of  the  deed, 
and  though  not  in  writing  has  been  held  not  to  be  obnoxious  to  the 
rule  that  a  written  instrument  cannot  be  added  to,  modified  or  ex- 
plained by  a  contemporaneous  parol  agreement.30  These  decisions 

"Post,  §  271. 

"Close  v.  Zell,  141  Pa.  St.  390;  21  Atl.  Rep.  770.  This  case  contains  a 
full  exposition  of  the  Pennsylvania  doctrine  stated  in  the  text.  Mr.  Justice 
GREEN,  delivering  the  opinion  of  the  court,  said:  "  In  the  second  count  of  the 
plaintiffs'  statement  their  cause  of  action  is  substantially  sot  out  as  a  parol 
contract  of  indemnity  against  a  defective  title  to  certain  real  estate  conveyed 
to  the  palintiffs  by  the  defendant's  testator,  which  was  the  operative  induce- 
ment to  the  plaintiffs  to  purchase  th«  title  from  their  vendor.  The  deed 
contained  the  usual  covenant  of  special  warranty,  but  no  covenant  of  title, 
and  as  there  is  no  breach  of  any  of  the  covenants  of  the  deed,  no  cause  of 
action  arises  under  it.  This  proceeding  is,  therefore,  not  in  any  sense  a  pro- 
ceeding to  change,  alter,  modify  or  reform  the  deed  in  question  in  any  respect. 
It  is  not  alleged  or  claimed  that  any  covenant  or  stipulation  was  omitted 
from  the  deed  by  fraud,  mistake  or  accident,  but  the  deed  just  as  it  is  set 
forth  in  the  statement  in  substance,  together  with  an  allegation  that  the 
grantor  agreed  with  the  plaintiffs  at  the  time  of  the  sale  and  delivery  of  the 
deed  that  he  would  refund  to  them  the  whole  of  the  consideration  money 
paid  by  the  grantees  to  the  grantor,  and  all  interest  and  all  costs  and  ex- 
penses incurred  in  the  event  that  the  grantees  sh6uld  not  acquire  under  the 
deed  a  good  title  to  the  premises  sold.  The  question  arises  whether  such 
a  contract  is  merged  in  the  deed  subsequently  executed  or  whether  it  survives 
the  deed  and  confers  a  cause  of  action  which  may  be  enforced  upon  a  failure 
of  the  title.  It  will  be  observed  that  the  contract,  which  in  this  case  was 
verbal,  precedes  and  is  independent  of  the  deed.  It  stipulates  for  indemnity 
against  the  consequences  of  the  taking  of  the  title  conveyed  by  the  deed.  If, 
notwithstanding  the  deed  and  the  title  thereby  sought  to  be  conveyed,  the 
grantees  subsequently  sustained  loss  by  reason  of  the  fact  that  they  acquired- 
no  title  by  the  deed,  is  there  any  legal  reason  why  they  cannot  recover  from 


660  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

seem  plainly  in  conflict  with  Smith  v.  Chaney,  supra,  and 
with  the  weight  of  American  authority  upon  the  point.  At  the 
same  time  it  cannot  be  denied  that  they  establish  a  rule  which  in 
many  cases  will  prevent  hardship  and  effectuate  the  intent  of  the 
parties.  It  is  not  always  that  they  can  have  the  advice  and  as- 
sistance of  skilled  conveyancers  in  the  execution  of  their  contracts. 
The  popular  idea  of  a  conveyance  is  that  its  principal  office  is 
merely  to  pass  the  title  of  the  grantor,  and  few  purchasers  having 
a  title  bond  or  written  contract  to  indemnify  them  against  loss  in 
ease  the  title  failed,  would  dream  it  necessary  to  have  the  same  as- 
surance repeated  in  the  conveyance.  In  the  eyes  of  the  parties  the 
one  instrument  is  as  binding  as  the  other,  and  the  merger  of  the 
indemnity  in  the  conveyance  is,  it  is  believed,  in  most  cases,  to 
make  for  them  a  contract  that  they  never  intended. 

the  grantor  the  money  which  he  had  received  from  them  and  which  he  prom- 
ised he  would  refund  to  them  in  ease  the  title  failed?  This  is  a  question 
which  has  been  several  times  adjudged  by  this  court."  The  learned  judge 
then  cited  and  reviewed  the  cases  of  Drinker  v.  Byers,  2  Pen.  &  W.  (Pa.) 
528;  Brown  v.  Moorhead,  8  S.  &  R.  (Pa.)  569;  Frederick  v.  Campbell,  13  S. 
&  R.  (Pa.)  136;  Richardson  v.  Gosser,  26  Pa.  St.  335;  Cox  v.  Henry,  32  Pa. 
St.  18,  and  Anderson  v.  Washerbaugh,  43  Pa.  St.  115,  and  continuing  said: 
"  It  thus  appears  from  the  cases  now  cited  that,  whether  the  agreement  for 
indemnity  was  made  before  or  at  the  time  of  the  sale  or  afterwards,  the 
right  to  recover  indemnity  in  an  action  on  the  special  agreement  is  sustained, 
and  that  whether  the  agreement  was  by  writing  or  spoken  words  is  a  matter 
of  indifference.  Such  an  agreement  is  not  merged  in  the  deed  if  made  before 
or  at  the  time  of  the  deed,  and  is  not  destroyed  by  a  covenant  of  general 
warranty  in  the  deed  if  made  thereafter.  The  same  doctrine  was  applied  in 
the  case  of  Robinson  v.  Bakewell,  25  Pa.  St.  424,  in  an  action  upon  a  similar 
bond,  given  one  day  after  the  deed,  and  although  the  deed  contained  a  cove- 
nant of  general  warranty,  and  a  recovery  was  had  for  all  costs,  charges  and 
expenses,  including  counsel  fees  incurred  in  defending  the  title.  We  again 
enforced  the  same  doctrine  in  Walker  v.  France,  112  Pa.  St.  203;  5  Atl.  Rep. 
208,  where  the  warranty  set  up  was  entirely  in  parol,  and  preceded  the  exe- 
cution of  the  written  agreement  for  the  sale  of  the  land  from  which  this  part 
of  the  contract  was  omitted.  GORDON,  J.,  said :  '  That  a  written  agreement 
may  be  modified,  explained,  reformed,  or  altogether  set  aside  by  parol 
evidence  of  an  oral  promise  or  undertaking  material  to  the  subject-matter 
of  the  contract  made  by  one  of  the  parties  at  the  time  of  the  execution  of  the 
writing,  and  which  induced  the  other  "party  to  put  his  name  to  it,  must  now 
be  regarded  as  a  principle  of  law  so  well  settled  as  to  preclude  discussion.'  It 
is  not  at  all  necessary  to  invoke  the  support  of  this  principle  to  sustain  the 
present  proceeding.  There  is  no  question  here  of  altering  the  deed  for  the 
lots  in  question  by  inserting  a  clause  left  out  of  it  by  mistake,  fraud  or  acci- 


DETENTION  OE  RESTITUTION  OF  THE  PURCHASE  MONEY.       661 

§  270.  MERGER  IN  CASES  OF  FRAUD,  where  the  vendor  has 
made  fraudulent  representations  respecting  the  title,  the  acceptance 
of  a  conveyance  will  not  merge  either  the  purchaser's  right  to 
recover  back  the  purchase  money,  or  to  recover  damages  for  the  loss 
of  his  bargain  in  an  action  for  the  deceit,31  unless  he  had  notice  of 
the  fraud  when  the  conveyance  was  made.32  A  contrary  view  of  the 
law  has  been  taken  in  one  case,33  but  that  decision  was  afterwards 
questioned  by  the  court  in  which  it  was  rendered,  and  would  appar- 
ently have  been  overruled  if  so  to  do  had  been  necessary  to  the 

dent.  The  case  is  only  cited  to  show  that  where  the  parol  stipulation  is  the 
inducing  cause  to  the  execution  of  the  written  instrument  the  law  is 
sufficiently  flexible  to  give  relief  in  this  manner,  if  the  evidence  is  of  a  per- 
fectly clear  and  satisfactory  character.  But  the  case  is  of  authority  on  the 
point  that  a  contract  in  the  nature  of  guaranty  as  to  the  quality  of  the  laml 
conveyed  is  not  merged  in  the  conveyance  and  may  be  enforced  independently 
of  it."  This  case  has  been  approvingly  cited  in  McGowan  v.  Bailey,  146  Pa. 
St.  572;  23  Atl.  Rep.  372,  387;  Kemp  v.  Pennsylvania  R.  Co.,  156  Pa.  St. 
430;  Elkin  v.  Timlin,  151  Pa.  St.  491;  25  Atl.  Rep.  139.  See,  also,  Witbeck 
v.  Waine,  16  N.  Y.  535;  Bogart  v.  Burkalter,  1  Den.  (N.  Y.)  125;  Carr  v. 
Roach,  2  Duer  (N.  Y.),  25  Colvin  v.  Schell,  1  Grant's  Cas.  (Pa.)  226;  Seldeu 
v.  Williams,  9  Watts  (Pa.),  9. 

"Chitty  Cont.  (10th  Am.  ed.)  339.  Alvarez  v.  Brennan,  7  Cal.  503;  7* 
Am.  Dec.  274;  Wright  v.  Carillo,  22  Cal.  604.  Gwinther  v.  Gerding,  3  Head 
(Tenn.),  198.  Sargent  v.  Gutterson,  13  N.  H.  473. 

32  Vernol  v.  Vernol,  63  N.  Y.  45.    Thweatt  v.  McLeod,  56  Ala.  375. 

"  Peabody  v.  Phelps,  9  Cal.  213,  where  it  was  hold  that  an  action  for  false 
and  fraudulent  representations  as  to  the  naked  fact  of  title  in  the  vendor  of 
real  property  cannot  be  maintained  by  the  purchaser  under  a  conveyance  witli 
express  covenants  for  title,  his  remedy  in  such  case  being  upon  the  covenants. 
The  court,  by  FIELD,  J.,  after  observing  that  they  had  been  unable  to  find  any 
case  in  which  the  exact  point  had  been  decided,  and  after  considering  several 
analogous  cases  (Wardell  v.  Fosdick,  13  Johns.  fKy.l  325;  7  Am.  Dec.  38.'] : 
Monell  v.  Colden,  13  Johns.  [N.  Y.l  396;  7  Am.  Dec.  390;  Leonard  v.  Pitney, 
5  Wend.  [N.  Y.]  31;  Culver  v.  Avery,  7  Wend.  [N.  Y.l  380;  22  Am.  Dec. 
586;  Whitney  v.  Allaire,  1  Com.  St.  [N.  Y.l  313.  Bostwick  v.  Lewis,  1 
Day  [Conn.],  250;  2  Am.  Dec.  73.  Wade  v.  Thurman,  2  Bibb  (Ky.l,  583), 
continued:  "In  the  execution  of  a  conveyance,  all  previous  representations 
pending  the  negotiation  for  the  purchase  are  merged.  The  instrument  con- 
tains the  final  agreement  of  the  parties  and  by  it,  in  the  absence  of  fraud.* 
their  rights  and  liabilities  are  to  be  determined."  This  case,  if  intended  to 
establish  the  proposition  that  the  acceptance  of  a  conveyance  where  the 
vendor  was  guilty  of  fraud  as  to  the  title,  waives  all  rights  consequent  upon 
the  fraud  and  confines  the  purchaser  to  his  remedy  upon  the  covenants, 


*  That  is,  fraud  by  which  the  purchaser  is  induced  to  accept  the  conveyance,  as  disting- 
uished from  fraudulent  representations  as  to  the  title  when  the  contract  was  made;  else 
the  observations  of  the  court  would  appear  to  be  contradictory. 


662  MAEKETABLE    TITLE    TO    SEAL    ESTATE. 

decision  of  the  case.34  But  if  the  purchaser,  with  every  opportunity 
of  discovering  the  fraud  of  the  vendor  by  examining  the  records 
after  the  making  of  the  contract,  and  before  its  completion  by  a 
conveyance  with  covenants  of  general  warranty,  accept  such  a  con- 
veyance without  examining  the  title,  he  will  be  compelled  to  pay 
the  purchase  money  and  look  to  his  covenants  for  redress  in  case  he 
should  be  thereafter  evicted.35  If  the  matters  alleged,  by  the  grantee 

whether  he  had  or  had  not  notice  of  the  fraud  at  the  time  the  deed  was 
accepted,  would  seem  not  to  be  in  harmony  with  other  authorities.  In  2 
Sugd.  Vend.  533,  it  is  said :  "  Although  the  purchase  money  has  been  paid, 
and  the  conveyance  is  executed  by  all  the  parties,  yet  if  the  defect  do  not 
appear  on  the  face  of  the  title  deeds,  and  the  vendor  was  aware  of  the  defect 
and  concealed  it  from  the  purchaser,  or  suppressed  the  instrument  by  which 
the  incumbrance  was  created,  or  on  the  face  of  which  it  appeared,  he  is  in 
every  such  case  guilty  of  a  fraud  and  the  purchaser  may  either  bring  his 
action  on  the  case,  or  file  his  bill  in  equity  for  relief."  See,  also,  1  Sugd. 
Vend.  56.  The  practical  consequence  of  forcing  the  purchaser  to  his  action 
on  the  covenants,  is  to  deprive  him  of  the  right  to  recover  damages  for  the 
loss  of  his  bargain,  the  measure  of  damages  in  that  action  being  limited  to 
the  consideration  money  and  costs  in  defending  against  the  adverse  claimant. 
Rawle  Covt.  §  159.  In  Andrus  v.  St.  Louis  Smelting  Co.,  130  U.  S.  643;  9 
Sup.  Ct.  Rep.  C45,  FIELD,  J.,  who  delivered  the  opinion  in  Peabody  v.  Phelps, 
supra,  when  one  of  the  justices  of  the  Supreme  Court  of  the  State  of  Cali- 
fornia, stated  the  rule  thus :  "  Where  the  vendor  holding  in  good  faith  under 
an  instrument  purporting  to  transfer  the  premises  to  him,  or  under  a  judicial 
determination  of  a  claim  to  them  in  his  favor,  executes  a  conveyance  to  the 
purchaser  with  a  warranty  of  title  and  a  covenant  of  peaceable  possession,  his 
previous  representations  as  to  the  validity  of  his  title,  or  the  right  of  pos- 
session which  it  gave,  are  regarded,  however  highly  colored,  as  mere  ex- 
pressions of  confidence  in  his  titl",  and  are  merged  in  the  warranty  and 
covenant,  which  determines  the  extent  of  his  liability."  In  such  a  case,  it 
may  be  observed,  the  vendor  could  scarcely  be  deemed  guilty  of  fraud,  and 
the  rule  thus  laid  down  in  no  wise  conflicts  with  the  proposition  that  actual 
fraud  by  the  vendor  is  not  merged  in  the  acceptance  of  a  conveyance  without 
notice  of  the  fraud. 

"  Wright  v.  Carillo,  22  Cal.  604.  The  case  is  also  disapproved  in  Kimball 
v.  Saguin  (Iowa),  53  N.  W.  Rep.  116. 

"Ante,  §  104.  Griffith  v.  Kempshall,  Clarke  Ch.  (N.  Y.)  576,  the  court 
saying:  "In  this  case  the  sale  was  at  public  auction,  pursuant  to  previous 
notice.  It  may  perhaps  be  fairly  presumed  that  the  company  casually  col- 
lected at  such  auction  were  ignorant  of  the  state  of  the  title  to  the  lands 
offered  for  sale.  They  could  hardly  be  expected,  preliminary  to  bidding,  to 
have  made  searches  for  themselves  as  to  the  title.  To  obviate  any  hesitation 
on  this  ground  on  the  part  of  the  bidders,  the  defendants,  the  sellers, 
by  one  of  their  number  and  by  the  auctioneer  employed  by  them,  declared 
according  to  (the  complaint)  that  a  clear  and  unincumbered  title  to  the  lots 


DETENTION  OR  RESTITUTION  OF  THE  PURCHASE  MONEY.       663 

to  have  been  falsely  represented  to  him  by  the  vendor,  are  equally 
open  to  both  parties,  and  the  grantee  examines  the  title,  and  relies 

sold  would  be  given  to  those  who  might  become  purchasers.  Upon  the  faith 
of  this  title  the  bids  were  made.  What  is  the  amount  of  this  declaration  of 
the  sellers?  Unquestionably  that  the  person  so  bidding  should  have  a  clear 
and  unincumbered  title;  and  this  assurance  could  be  enforced  by  any  of  the 
purchasers  at  such  sale  before  taking  their  deeds.  The  deeds  were  not  of 
course  ready  at  the  day  of  sale.  The  purchaser,  under  this  assurance,  would 
have  or  could  claim  time  to  examine  into  the  state  of  the  title.  They  could 
not  be  compelled  to  complete  the  purchase  until  such  time  was  given  them. 
If  upon  such  examination,  they  ascertained  that  the  title  was  incumbered 
or  invalid,  they  might  abandon  their  purchases,  because  the  assurance  held 
out  at  the  sale  was  not  sustained  by  the  fact.  Or  the  purchasers  might,  if 
they  chose,  instead  of  examining  into  the  title,  take  their  deeds,  protecting 
themselves  by  proper  covenants  as  to  title  and  against  incumbrances.  They 
have  chosen  to  take  the  latter  course.  By  so  doing,  I  apprehend,  the  assurance 
made  at  the  sale  is  merged  in  the  covenants  contained  in  the  deeds.  The 
execution  and  acceptance  of  the  deeds  is  the  completion  of  the  executory 
contracts  made  by  the  bidding  at  the  auction,  and  the  terms  of  that  executory 
contract  cannot  now  be  inquired  into,  unless  there  was  fraud  in  the  repre- 
sentations so  made.  It  seems  to  me  that  the  representations  made  at  the 
sale  were  nothing  more  than  this,  that  the  title  was  clear  and  unincumbered; 
and  if  it  did  not  prove  so,  the  bidding  at  the  sale  should  not  amount  to  a 
contract.  It  was  for  the  purchasers,  after  the  sale  and  before  taking  their 
deeds,  to  ascertain  whether  this  was  so,  whether  the  title  was  such  as  would 
be  satisfactory  to  them ;  or,  in  other  words,  whether  they  were  willing  to  take 
the  deeds  and  consider  the  contract  complete  and  perfect.  They  have  chosen 
to  consider  the  contract  complete  and  perfect,  by  the  acceptance  of  deeds 
without  inquiry  or  investigation,  guarding  themselves  by  covenants  from 
the  grantors.  They  have  thought  it  proper  so  to  do,  and  execute  their  mort- 
gages for  the  purchase  money,  and  further,  to  make  valuable  erections  upon 
the  premises  so  purchased.  It  is  true  the  bill  charges  that  they  did  all  this, 
relying  upon  the  truth  of  the  representations  made  by  the  sellers.  I  cannot 
think  this  allegation  will  aid  the  complainants.  They  had  abundant  means 
and  opportunities  to  ascertain  for  themselves  the  truth  of  the  representa- 
tions ;  and,  in  my  opinion,  these  assurances  were  given  for  the  purpose  of 
enabling  the  purchasers  so  to  do.  They  did  not  chose  to  avail  themselves 
of  such  means.  They  have  been  negligent,  and  this  court  will  hardly  feel 
itself  called  upon  to  repair,  by  its  decree,  their  want  of  diligence  and  care 
of  their  own  interests  and  rights."  The  main  points  of  difference  between 
Griffith  v.  Kempshall,  supra,  and  Peabody  v.  Phelps,  supra,  are  :  ( 1 )  That 
the  first  case  was  a  suit  to  restrain  the  collection  of  the  purchase  money  on 
the  ground  of  the  vendor's  fraud  until  he  should  remove  certian  incum- 
rances;  while  the  second  was  an  action  at  law  to  recover  damages  for  the 
deceit,  and  the  effect  of  the  decision  was  to  drtae  the  plaintiff  to  his  action 
on  the  covenant,  in  which  he  could  recover  no  damages  for  the  loss  of  his 
bargain.  (2)  That  in  the  first  case  there  was  a  covenant  of  general  warranty, 
while  in  the  second  the  covenant  was  limited  to  the  acts  of  the  grantor  and 


664  MARKETABLE    TITLE    TO    REAL    ESTATE. 

upon  the  evidences  furnished  by  the  public  records,  and  not  upon 
the  representation  of  the  vendor,  the  contract  will  not  be  rescinded, 
but  the  grantee  will  be  left  to  his  remedy  upon  the  covenants,  if 
any.36 

If  the  purchaser  expressly  contracted  for  a  good  title  and  was 
afterwards  induced  to  accept  a  quit-claim  conveyance  through  the 
fraudulent  representations  of  the  vendor  respecting  the  title,  the 
contract  is  not  merged  in  the  conveyance,  and  the  purchaser  is 
entitled  to  a  rescission  of  the  contract  and  to  recover  back  or 
detain  the  purchase  money.37 

In  a  case  in  which  the  sale  was  without  fraud  in  the  first 
instance,  false  representations  respecting  the  title,  made  by  th& 

his  heir;  so  that  while  the  first  case  merely  drives  the  purchaser  to  a  dif- 
ferent form  of  redress,  the  second  case  not  only  deprives  him  of  damages  for 
the  loss  of  his  bargain  (i.  e.,  the  value  of  the  premises  in  excess  of  the  pur- 
chase money),  but  the  premises  having  been  lost  through  paramount  title 
and  not  through  any  one  claiming  under  the  grantor,  denies  him  any  relief 
whatever.  (3)  In  the  first  case  a  considerable  period  elapsed  between  the 
making  of  the  contract  and  the  acceptance  of  the  conveyance  in  which  the 
purchaser  might  have  examined  the  title.  In  the  second  case  it  seems  that 
the  sale  was  immediately  tonsummated  by  a  conveyance,  so  that  the  pur- 
chaser could  not  have  examined  the  title  without  deferring  the  conveyance. 

••Farnsworth  v.  Duffner,  142  U.  S.  43. 

w  Rhode  v.  Alley,  27  Tex.  445,  where  it  was  said:  "  It  cannot  be  questioned 
that  it  is  competent  for  a  purchaser  of  land  who  has  received  a  deed  with 
special  warranty  to  show  that  a  fraud  has  been  practiced  upon  him  in  respect 
to  the  title.  If  a  vendor  of  land  has  a  perfect  title  in  himself,  his  vendee  may 
well  be  content  to  accept  from  him  a  deed  with  special  warranty  because  such 
a  deed  would,  in  that  case,  vest  an  unimpeachable  title  in  the  vendee.  Ordi- 
narily, when  a  vendor  accepts  a  quit-claim  deed  or  a  deed  with  special  war- 
ranty, the  presumption  of  law  is  that  he  acts  upon  his  own  judgment  and 
knowledge  of  the  title,  and  he  will  not  be  heard  to  complain  that  he  has  not 
acquired  a  perfect  title.  But  where,  in  the  negotiations  preliminary  to  the 
execution  of  the  contract,  the  purchaser  stipulates  for  a  perfect  title  and  is 
afterwards  induced,  by  the  false  or  fraudulent  representations  of  the  vendor, 
to  accept  a  quit-claim  deed  with  special  warranty,  in  the  belief  that  he  is 
acquiring  a  perfect  title,  and  one  free  from  litigation  at  the  time,  he  will 
be  permitted  to  show  that  he  was  deceived  in  respect  to  the  title,  and  may 
be  relieved  against  such  contract.''  Citing,  among  other  cases,  Hayes  v. 
Bonner,  14  Tex.  629,  in  which,  however,  the  contract  had  not  been  executed 
by  a  conveyance,  but  the  purchaser  had,  by  reason  of  the  vendor's  fraurt, 
agreed  to  accept  a  quit-claim  conveyance.  See,  also,  Wilson  v.  Higbee,  62  Fed. 
Rep.  723.  Ballou  v.  Lucas,  59  Iowa,  24;  12  N.  W.  Rep.  745.  Atwood  v. 
Chapman,  68  Me.  38;  28  Am.  Rep.  5. 


DETENTION  OR  RESTITUTION  OF  THE  PURCHASE   MONEY.       665 

vendor  some  time  afterwards  when  a  deed  is  accepted  and  a  security 
for  the  purchase  money  given,  have  been  held  no  ground  for  re- 
scinding the  contract  or  detaining  the  purchase  money.38  It  may 
he  doubted  whether  this  decision  can  be  reconciled  with  those  which 
hold  that  fraud  of  which  the  purchaser  is  ignorant  is  not  merged 
in  a  conveyance  with  covenants  for  title. 

§  271.  RULE  IN  PENNSYLVANIA.  The  decisions  in  Pennsyl- 
vania upon  the  right  of  a  purchaser  to  detain  the  purchase  money 
must  be  carefully  distinguished  from  those  rendered  elsewhere,  for 
they  establish  a  doctrine  which  does  not,  in  its  entirety,  exist  in  the 
other  States.  The  principal  features  of  that  doctrine  are  that 
wherever  the  title  of  the  vendor  fails  the  purchaser  may  detain  the 
purchase  money  whether  the  contract  be  executed  or  executory,  and, 
if  executed,  whether  the  deed  contains  covenants  for  title  or  not, 
unless  he  expressly  assumed  the  risk  of  the  title,  and  that  the  pur- 
chaser may  defeat  the  recovery  of  the  purchase  money  in  every 
such  case  by  showing  a  clear  outstanding  title  in  another,  or  a  valid 
incumbrance  on  the  property  equal  to  the  purchase  money,  though 
he  has  not  been  evicted  or  disturbed  in  the  possession.39  The  re- 

"Kirkland  v.  Wade,  61  Ga.  478. 

"In  Beaupland  v.  McKeen,  28  Pa.  St.  130;  70  Am.  Dec.  115,  the  court 
said,  WOODWARD,  J.,  delivering  the  opinion:  "We  have  gone  further  in  Penn- 
sylvania in  relieving  purchasers  of  real  estate  from  payment  of  purchase 
money  on  the  ground  of  defects  and  incumbrances  than  courts  of  justice  have 
gone  in  any  other  State  or  country  where  the  common  law  obtains.  All  ad- 
minister not  only  equitable  relief  while  the  contract  remains  executory,  but 
after  it  has  been  executed  by  deed  made  and  delivered,  we  give  the  purchaser, 
besides  the  full  benefit  of  any  covenants  his  deed  may  contain,  the  right  to 
defend  himself  from  payment  of  the  purchase  money,  however  solemn  the 
instrument  by  which  it  is  secured,  if  he  can  show  a  clear  outstanding  defect 
or  incumbrance,  unless  he  expressly  assumes  the  risk  of  it.  In  England  and 
in  most  of  the  States  around  us  the  equitable  right  of  the  purchaser  to  detain 
unpaid  purchase  money  depends  on  the  covenants  in  his  deed.  He  is  not 
compelled  to  pay  what  he  could  recover  back  in  damages  by  action  at  law, 
but,  as  his  equity  springs  from  breach  of  a  legal  covenant,  he  has  no  title 
to  relief  where  there  is  no  covenant,  or  a  covenant  but  no  breach."  It  must 
not  be  supposed  from  this  language  that  the  presence  or  absence  of  covenants 
in  the  conveyance  to  tlie  purchaser  is  of  no  importance  in  this  State.  Under 
certain  circumstances  either  is  of  the  utmost  importance,  as  will  be  seen 
hereafter. 

An  excelloat  summary  of  the  Pennsylvania  doctrine  is  contained  in  the  case 
of  Wilson  v.  Cochran,  46  Pa.  St.  230;  86  Am.  Dec.  574.  It  is  there  said: 
"  The  detention  of  purchase  money  on  account  of  breaches  of  the  vendor's 


666  MAEKETABLE    TITLE    TO    EEAL    ESTATE. 

suits  of  those  decisions  may  be  conveniently  stated  in  the  following 
propositions : 

(1)  A  purchaser  who  has  received  a  conveyance  of  the  purchased 
premises  may  defend  himself  against  the  payment  of  the  purchase 
money  whether  the  conveyance  be  with  or  without40  covenants  for 
title,  wherever  there  is  a  clear  failure  of  title  on  the  part  of  the 
vendor,  and  whether  there  has  been  an  eviction  or  not,  unless  he 
expressly  assumed  the  risk  of  the  title,  or  unless  the  defect  of  title 
was  known  to  him  and  he  expressly  took  a  covenant  against  it  for 
his  protection.41  If  the  defect  of  title  consist  of  an  incumbrance  it 

covenant  is  a  mode  of  defense  that  is  peculiar  to  our  Pennsylvania  jurispru- 
dence, but  the  principle  is  well  settled  with  us  that  where  a  vendor  has  con- 
veyed with  covenants  on  which  he  would  be  liable  to  the  vendee  in  damages 
for  a  defect  of  title,  the  vendee  may  detain  purchase  money  to  the  extent 
which  he  would  be  entitled  to  recover  damages  upon  the  contract,  and  he  is 
not  obliged  to  restore  possession  to  his  vendor  before  or  at  the  time  of  avail- 
ing himself  of  such  a  defense.  Where  there  is  a  known  defect,  but  no  cove- 
nant or  fraud,  the  vendee  can  avail  himself  of  nothing,  being  presumed  to  have 
been  compensated  for  the  risk  in  the  collateral  advantages  of  the  bargain. 
But  where  there  is  a  covenant  against  a  known  defect,  he  shall  not  detain 
purchase  money  unless  the  covenant  has  been  broken.  If  the  covenant  be 
for  seisin  or  against  incumbrances,  it  is  broken  as  soon  as  made  if  a  defect 
of  title  or  incumbrance  exist,  but  if  it  be  a  covenant  of  warranty  it  binds  the 
grantor  to  defend  the  possession  against  every  claimant  of  it  by  right,  and  is 
consequently  a  covenant  against  rightful  eviction.  To  maintain  an  action 
for  breach  of  it,  an  eviction  must  be  laid  and  proved,  not  necessarily  by 
judicial  process  or  the  application  of  physical  force,  but  by  the  legal  force 
of  an  irresistible  title.  There  must  be  proof  at  the  least  of  an  involuntary 
loss  of  the  possession.  And  as  the  right  to  detain  purchase  money  is  in  the 
nature  of  an  action  on  the  covenant,  and  is  allowed  to  prevent  circuity,  the 
vendee  who  seeks  to  detain  by  virtue  of  a  covenant  of  warranty  is  as  much 
bound  to  prove  an  eviction  as  if  he  were  plaintiff  in  an  action  of  covenant. 
Until  eviction  the  covenant  is  part  of  the  consideration  of  the  purchase  money 
he  agreed  to  pay,  and  holding  the  covenant  he  may  not  withhold  the  purchase 
money.  But  after  eviction  he  has  a  right  to  have  his  damages  deducted  from 
the  purchase  money. 

40  The  expression  "  without  covenants,"  as  used  here  and  in  the  following 
pages,  means  without  covenants  embracing  the  defect  of  which  the  purchaser 
complains.  If  the  defect  be  one  not  created  by  the  grantor  or  his  assigns,  a 
conveyance  with  special  or  limited  warranty  only  is  the  same  as  a  conveyance 
with  no  covenants  at  all,  as  respects  the  right  to  detain  the  purchase  money. 
Cross  v.  Noble,  67  Pa.  St.  78. 

"Steinhauer  v.  Witman,  1  S.  &  R.  (Pa.)  438,  the  leading  case;  Hart  v. 
Porter,  5  S.  &  R.  (Pa.)  201;  Share  v.  Anderson,  7  S.  &  R.  (Pa.)  61;  10  Am. 
Dec.  421;  Carnahan  v.  Hall,  Add.  (Pa.)  127;  Goucher  v.  Helmbold,  1  Miles 
(Pa.)  407;  Beaupland  v.  McKeen,  28  Pa.  St.  130;  70  Am.  Dec.  115;  Lloyd  v. 


DETENTION  OE  BESTITUTION  OF  THE  PURCHASE  MONEY.       667 

is  not  necessary  that  he  shall  have  discharged  it  in  order  to  avail 
himself  of  the  right  to  detain  the  purchase  money.42  Nor  is  it 
necessary  that  he  shall  have  restored  the  possession  of  the  premises 
to  the  vendor  before  making  such  a  defense,  if  the  retention  of  the 
premises  be  necessary  to  indemnify  him  for  what  he  has  already 
paid,43  unless  the  vendor  is  merely  seeking  to  foreclose  a  security 
for  the  purchase  money,  such  as  a  vendor's  lien,  in  which  no  judg- 
ment or  decree  over  against  the  purchaser  in  case  of  a  deficiency  is 
asked.  In  such  a  case,  if  none  of  the  purchase  money  has  been  paid 
and  there  has  been  no  breach  of  any  covenant  by  the  vendor,  it  is 
no  concern  of  the  purchaser  whether  the  title  be  good  or  bad  and  he 
must  restore  the  possession.44 

An  exception  to  the  rule  that  the  purchaser  may  detain  the  pur- 
chase money,  though  he  has  accepted  a  conveyance  without  cove- 
nants for  title,  exists  in  those  cases  where  there  is  a  deficiency  in 
the  quantity  of  land  conveyed,  unless  the  deficiency  is  so  great  that 
it  is  evidence  of  deceit.45  Where  the  contract  has  been  executed  by 
deed,  it  will  not  be  opened  to  allow  for  a  deficiency  in  quantity 
even  though  there  was  a  mistake  as  to  the  true  quantity.46 

(2)  The  adverse  title  or  incumbrance  which  will  justify  the  pur- 
chaser in  rescinding  the  contract  and  detaining  the  purchase  money 
after  a  deed  has  been  executed  and  where  there  has  been  no  evic- 
tion, must  not  be  merely  such  as  creates  a  doubt  as  to  the  title ;  it 

Farrell,  48  Pa.  St.  73;  Youngman  v.  Linn,  52  Pa.  St.  413;  Cross  v.  Noble,  67 
Pa.  St.  74;  Wilson's  Appeal,  109  Pa.  St.  106.  In  Seaton  v.  Barry,  4  W.  &  S. 
(Pa.)  184,  a  partitioner  who  had  taken  the  whole  premises  at  a  valuation 
was  allowed  to  detain  the  valuation  money  to  the  extent  of  an  incumbrance 
on  the  premises  created  by  the  ancestor.  It  will  be  remembered  that  a  war- 
ranty of  title  is  implied  in  cases  of  partition  and  exchange.  Ante,  §  137. 

"Roland  v.  Miller,  3  W.  &  S.  (Pa.)  390;  Poke  v.  Kelly,  13  S.  &  R.  165. 
In  this  case,  however,  the  contract  was  executory. 

"  Wilson  v.  Cochran,  46  Pa.  St.  257 ;  86  Am.  Dec.  574 ;  Poyntell  v.  Spenser, 
f>  Pa.  St.  256.  The  same  rule  exists  where  the  contract  is  executory.  Ren- 
shaw  v.  Gaus,  7  Pa.  St.  117.  But,  of  course,  the  purchaser  must  ultimately 
give  up  the  possession.  He  cannot  keep  the  land  and  the  purchase  money  too. 
Congregation  v.  Miles,  4  Watts  (Pa.)  146. 

44  Hersey  v.  Turbett,  27  Pa.  St.  424.  See,  also,  Hulfish  v.  O'Brien,  5  C.  E. 
Green  (N.  J.),  230  and  ante,  §  184. 

"Bailey  v.  Snyder,  13  S.  &  R.  (Pa.)  160;  Dickinson  v.  Voorhees,  7  W.  &  S. 
(Pa.)  353;  Coughenour  v.  Stauft,  27  Pa.  St.  191;  Rodgers  v.  Olshoffsky,  110 
Pa.  St.  147;  2  Atl.  Rep.  44. 

46  Farmers'  Bank  v.  Galbraith,  10  Pa.  St.  490. 


668  MARKETABLE    TITLE    TO    REAL    ESTATE. 

must  amount  to  a  clear  failure  of  the  title,47  and  if  an  incumbrance, 
it  must  equal  in  amount  the  whole  of  the  unpaid  purchase  money.4* 
If  the  incumbrance  goes  only  to  a  party  of  the  purchase  money,  or 
if  the  title  fails  as  to  part  of  the  premises  only,  the  contract  will 
not  be  rescinded,  but  the  purchase  money  will  be  abated  to  the  ex- 
tent of  the  loss  or  injury  suffered.49 

(3)  Mere  constructive  notice  of  the  existence  of  an  incumbrance 
or  defect  of  title,  as  where  these  are  disclosed  by  the  record  or  lie  in 
the  chain  of  the  vendor's  title,  is  not  sufficient  to  charge  the  pur- 
chaser with  notice  of  the  defective  title  and  raise  the  presumption, 
where  there  are  no  covenants,  that  he  assumed  the  risk  of  the  title.50 

"Ludwick  v.  Huntzinger,  5  W.  &  S.  (Pa.)  58;  Brick  v.  Coster,  4  W.  &  S. 
(Pa.)  494;  Culler  v.  Motzer,  13  S.  &  R.  (Pa.)  356;  15  Am.  Dec.  604;  Perm, 
v.  Preston,  2  Rawle  (Pa.),  19;  Bradford  v.  Potts,  9  Pa.  St.  37;  Crawford  v. 
Murphy,  22  Pa.  St.  87 ;  Asay  v.  Lieber,  92  Pa.  St.  377.  A  different  rule  pre- 
vails where  the  contract  is  still  executory.  A  suit  to  recover  purchase  money 
on  articles  of  agreements  is  in  the  nature  of  a  bill  for  specific  performance; 
hence,  where  the  title  to  the  land  is  doubtful  or  not  marketable,  the  plaintiff 
cannot  recover.  Murray  v.  Ellis,  112  Pa.  St.  492;  3  Atl.  Rep.  845;  Hertzberg 
v.  Irwin,  11  Xorris  (Pa.),  48.  In  Ludwick  v.  Huntzinger,  5  W.  &  S.  (Pa.) 
58,  the  court,  after  stating  the  rule  as  above  when  the  contract  has  been 
executed,  continued :  "  It  is  proper  to  observe  that  a  different  principle 
governs  where  the  contract  for  the  purchase  of  land  remains  in  fieri,  and  the 
action  is  brought  on  the  contract  itself  with  a  view  to  enforce  the  payment 
of  the  purchase  money  according  to  its  terms.  There,  if  it  should  appear  that 
the  title  of  the  vendor  to  the  land  is  anywise  doubtful,  the  vendee  will  not 
be  held  bound  to  pay  the  purchase  money  for  it  (5  Binn.  365),  unless  it 
should  also  appear  that  he  had  expressly  agreed  to  do  so.  Dorsey  v.  Jack- 
man,  1  S.  &  R.  (Pa.)  42;  7  Am.  Dec.  611;  Pennsylvania  v.  Sims,  Add. 
(Pa.)  9." 

"McGinnis  v.  Noble,  7  W.  &  S.  (Pa.)  454;  Dentler  v.  Brown.  11  Pa.  St.  298. 
In  these  two  cases  it  was  also  held  that  the  purchaser  was  not  bound  to  pay 
off  an  incumbrance  maturing  at  a  time  when  no  installment  of  the  purchase 
money  was  due.  Harper  v.  Jeffries,  5  Whart.  (Pa.)  26:  Mellon's  Appeal.  32 
Pa.  St.  127.  The  rule  stated  in  the  text  is  also  applicable  where  the  contract 
is  still  executory.  Garrard  v.  Lautz,  12  Pa.  St.  192:  Garrett  v.  Crosson,  32 
Pa.  St.  375;  Renshaw  v.  Gaus.  7  Pa.  St.  117. 

*Lee  v.  Dean,  3  Whart.  (Pa.)  331;  Stehley  v.  Irwin,  8  Pa.  St.  500;  White 
v.  Lowery,  27  Pa.  St.  255:  Beaupland  v.  McKeen.  28  Pa.  St.  134:  70  Am. 
.Dec.  115. 

M  Thomas  v.  Harris,  43  Pa.  St.  231  :  Murphy  v.  Richardson.  28  Pa.  St.  293; 
Roland  v.  Miller,  3  W.  &  S.  (Pa.)  390,  semble;  Banks  v.  Ammon.  27  Pa.  St. 
172,  semble;  Wilson  v.  Cochran.  46  Pa.  St.  232.  semble;  86  Am.  Dec.  574.  In 
Thomas  v.  Harris,  43  Pa.  St.  241,  it  was  said  upon  this  point:  "  In  the  case 
now  before  us,  the  only  ground  for  a  presumption  that  the  purchaser  agreed 


DETENTION  OB  RESTITUTION  OF  THE  PUECHASE  MONEY.       669 

If  the  purchaser  has  taken  covenants  with  knowledge  of  the 
existence  of  a  defect  or  incumbrance,  his  right  to  recover  on  the 
covenants  will  not  be  affected  thereby,  for  it  will  be  presumed  that 
he  took  the  covenants  expressly  for  his  protection.51  But  if  he  took 
no  covenants,  then  it  becomes  important  to  inquire  whether  he  in- 
tended to  risk  the  title,  and  upon  this  question  his  knowledge  of 
the  existence  of  the  defect  or  incumbrance  is  of  the  utmost  im- 
portance.52 

to  run  the  risk  of  any  claim  of  the  widow  to  dower  is  that  he  took  a  deed 
from  her  under  a  decree  of  the  court  for  the  estate  of  the  deceased  husband, 
and  also  for  her  own  interest,  when,  it  is  said,  he  knew  or  should  have  known 
that  she  was  entitled  to  dower  in  the  land  if  she  conveyed  only  her  husband's 
interest.  No  evidence  of  actual  knowledge  is  in  the  case.  He  ia 

chargeable,  therefore,  only  with  constructive  notice  of  any  defect  in  the  title. 
In  such  a  case  there  is  no  reason  that  a  purchaser  binds  himself  to  pay  the 
purchase  money,  no  matter  what  may  prove  the  defects  of  title.  It  is  only 
when  he  has  actual  knowledge  of  the  defect  that  he  is  presumed  to  waive  com- 
pliance with  the  covenant  of  his  vendor.  Were  it  not  so,  a  vendor's  deed  on 
record  to  a  third  person  would  not  excuse  a  subsequent  purchaser  from  him 
from  paying  all  the  agreed  purchase  money  after  he  has  accepted  a  deed,  an 
injustice  too  revolting  to  find  any  place  in  the  law. 

But  where  the  question  is  whether  the  vendor  has  fraudulently  withheld 
from  the  purchaser  knowledge  of  the  existence  of  an  incumbrance  on  the 
premises,  and  whether  the  purchaser  had  waived  the  right  to  rescind  by  per- 
forming the  contract  with  notice  of  the  incumbrance,  a  different  rule  from 
that  stated  in  the  text  has  been  applied  in  Pennsylvania.  In  such  a  case, 
Stephens'  Appeal,  87  Pa.  St.  202,  it  was  held  that  the  record  of  the  incum- 
brance "  was  constructive  notice  to  the  purchaser  equally  as  effective  as 
actual  notice,"  citing  Evans  v.  Jones,  1  Yeates  (Pa.),  172;  Kuhn's  Appeal,  2 
Barr  (Pa.),  264.  Both  of  these,  however,  were  cases  arising  between  the 
purchaser  and  a  prior  purchaser  or  creditor,  and  not  between  purchaser  and 
vendor  upon  the  question  of  notice  as  affecting  the  right  to  rescind.  In 
Peck  v.  Jones,  70  Pa.  St.  84,  where  the  record  disclosed  the  defeat  and  there 
was  nothing  to  show  that  the  vendor  had  actual  knowledge  thereof,  the  court 
said  that  the  purchaser  was  as  much  "chargeable  with  notice  of  the  defect 
from  the  record  as  the  vendor. 

Nor  is  the  rule  that  constructive  notice  of  defects  from  their  appearance 
of  record  will  not  affect  the  purchaser's  rights  against  the  vendor  held  to 
apply  in  Pennsylvania,  where  the  purchaser  seeks  to  rescind  an  executory  con- 
tract and  recover  back  payments  made  in  ignorance  of  the  existence  of  an  in- 
cumbrance on  the  property.  In  such  a  case  it  is  said  that  the  constructive 
notice  which  the  record  of  a  judgment  lien,  standing  in  the  line  of  the  vendor's 
title,  gives  to  the  vendee,  is  as  effectual  as  actual  notice.  Boyd  v.  McCullough, 
137  Pa.  St.  7;  20  Atl.  Rep.  630. 

"Thomas  v.  Harris,  43  Pa.  St.  241. 

"Cases  cited  supra,  n.  41,  p.  666. 


670  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

(4)  The  fact  that  the  purchaser,  with  knowledge  of  the  de- 
fective title,  accepts  a  deed  without  covenants  against  the  defect, 
raises  a  presumption  that  he  assumed  the  risk  of  the  title,53  and 
was  compensated  for  the  risk  in  the  collateral  advantages  of  the 
bargain  ;M  but  such  presumption  is  not  conclusive,  and  may  be  re- 
butted bj  the  purchaser  in  an  action  against  him  for  the  purchase 
money.55     This  rule  is  materially  modified  by  that  which  follows 
next. 

(5)  The  acceptance  of  a  deed  without  covenants,  when  the  pur- 
chaser has  notice  of  a  pecuniary  incumbrance  on  the  property, 
which  can  be  discharged  out  of  the  purchase  money,  does  not  raise 
a  presumption  that  (he  purchaser  assumed  the  risk  of  the  title; 
that  is,  the  payment  of  the  incumbrance  in  addition  to  the  purchase 
money.06    On  the  contrary,  the  presumption  is  that  the  purchaser 
intended  to  apply  the  purchase  money  to  the  satisfaction  of  the 
incumbrance.     It  has  been  held,  however,  that  this  rule  does  not 
apply  where  the  purchaser  secures  the  purchase  money  by  the  exe- 
cution of  a  written  obligation  to  pay  the  same  after  he  receives 

"Ludwick  v.  Huntzinger,  5  W.  &  S.  (Pa.)  58;  Lighty  v.  Shorb,  3  Pa.  447; 
23  Am.  Dec.  334 ;  Smith  v.  Sillyman,  3  Whart.  ( Pa. )  589 ;  Hart  v.  Porter,  5 
S.  &  R.  (Pa.)  201;  Fuhrman  v.  Loudon,  13  S.  &  R.  (Pa.)  386;  15  Am.  Dec. 
608;  Beidelman  v.  Foulk,  5  Watts  (Pa.),  308;  Ross'  Appeal,  9  Pa.  St.  491. 

64  Lighty  v.  Shorb,  3  Pa.  St.  452 ;  34  Am.  Dec.  334 ;  Youngman  v.  Linn,  52 
Pa.  St.  413. 

55  Rawle  Covts.  §  344.  Thomas  v.  Harris,  43  Pa.  St.  231 ;  Drinker  v.  Byars, 
2  Pa.  St.  528.  The  rule  stated  in  the  text  is  the  inevitable  conclusion  from 
the  decision  rendered  upon  the  facts  in  this  case,  though  it  is  not  therein 
announced  in  so  many  words.  Doubts  having  arisen  about  the  title,  the  pur- 
chaser took  from  th*»  vendor  an  agreement  to  save  him  harmless  in  case  any 
adverse  title  should  be  successfully  maintained,  and  then  accepted  a  deed 
without  covenants  against  the  anticipated  claims.  The  purchaser  lost  a  part 
of  the  property  by  the  successful  assertion  of  these  claims,  and  he  was  allowed 
to  set  up  that  fact  as  a  defense  to  an  action  on  the  purchase-money  mortgage. 
"  Such  a  decision,"  Mr.  fcawie  observes  "  «>uld  not  have  been  made  if  the  pur- 
chaser's notice  and  the  absence  of  a  covenant  were  deemed  conclusive  evidence 
that  he  was  to  run  the  risk  of  the  title,"  and  Mr.  Ra,wle's  observation  is 
fully  sustained  by  the  case  of  Smith  v.  Chaney,  4  Md.  Ch.  246,  where,  under 
precisely  similar  circumstances,  the  purchaser  was  denied  relief,  the  court  say- 
ing that  the  agreement  for  indemnity  was  merged  in  the  conveyance  without 
covenants. 

M  Wolbert  v.  Lucas,  10  Pa.  St.  73 ;  49  Am.  Dec.  578. 


DETENTION  OK  BESTITUTION  OF  THE  PURCHASE  MONEY.       671 

notice  of  the  incumbrance.57  The  exception  would  seem  practically 
to  destroy  the  rule,  for  it  is  but  seldom  that  the  vendor  delivers  a 
conveyance  of  the  property  until  he  has  received  a  written  obliga- 
tion of  some  kind  to  pay  the  purchase  money. 

If  the  purchaser  has  notice  of  an  incumbrance  or  defect,  and 
takes  a  deed  with  a  covenant  which  embraces  it,  the  presumption  is 
that  the  covenant  was  taken  by  the  purchaser  for  his  protection,  and 
he  cannot  detain  the  purchase  money  unless  the  covenant  has  been 
broken.68 

"  Lukens  v.  Jones,  4  Phila.  (Pa.)  18,  distinguishing  Wolbert  v.  Lucas,  10 
Pa.  St.  73;  49  Am.  Dec.  578.  This  was  not  a  decision  of  a  court  of  last 
resort,  and  possibly  may  not  be  recognized  in  Pennsylvania  as  of  binding 
authority.  The  report  does  not  show  whether  there  was  a  conveyance  to  the 
purchaser  or  not.  Presumably  there  was,  for  otherwise  the  case  would  have 
been  more  clearly  distinguishable  from  Wolbert  v.  Lucas,  supra,  where  there 
was  a  conveyance  without  a  covenant  embracing  the  incumbrance. 

MLighty  v.  Shorb,  3  Pa.  St.  447;  34  Am.  Dec.  334;  Fuhrman  v.  Lundon,  13 
S.  &  R.  (Pa.)  386;  15  Am.  Dec.  608;  Horbach  v.  Gray,  8  Watts  (Pa.), 
497;  Ives  v.  Niles,  5  Watts  (Pa.),  323;  Smith  v.  Sillyman,  3  Whart.  (Pa.) 
589;  Bradford  v.  Potts,  9  Pa.  St.  37;  Juvenal  v.  Jackson,  14  Pa.  St.  419; 
Kerr  v.  Kitchen,  17  Pa.  St.  433;  Murphy  v.  Richardson,  27  Pa.  St.  293; 
Wilson  v.  Cochran,  46  Pa.  St.  230;  86  Am.  Dec.  574;  Youngman  v.  Linn,  52 
Pa.  St.  413;  Wilson's  Appeal,  109  Pa.  St.  106.  In  the  case  of  Eby  v.  Elder, 
122  Pa.  St.  342;  15  Atl.  Rep.  423  the  purchaser,  under  a  conveyance  with  a 
covenant  against  incumbrances,  resisted  the  payment  of  the  purchase  money 
on  the  ground  that  the  premises  were  traversed  by  a  private  right  of  way 
which  impaired  their  value.  The  court  charged  the  jury  that  if  they  found 
from  the  evidence  that  at  the  time  of  the  purchase  the  land  was  openly  and 
plainly  subjected  to  the  easement :  that  the  physical  condition  of  the  ground 
was  openly  and  plainly  affected  thereby,  then,  since  there  was  no  express 
agreement  or  covenant  relating  thereto,  the  continuance  of  the  easement  would 
not  be  a  breach  of  the  covenant  against  incumbrances,  and  the  plaintiff  would 
be  entitled  to  recover  the  purchase  money.  This  decision  was  affirmed  on 
appeal.  The  same  decision  had  been  previously  made  in  the  case  of  Wilson 
v.  Cochran,  48  Pa.  St.  108;  86  Am.  Dec.  574.  The  ground  of  these  decisions 
was  that  the  purchaser  could  not  detain  the  purchase  money  unless  there  had 
been  an  eviction,  and  that  there  could  be  no  eviction  where  he  purchased  with 
actual  notice  of  the  incumbrance.  Mr.  Rawle  comments  upon  the  latter  case 
as  follows:  "While  the  court  say  expressly  that  the  existence  and  user  of  a 
paramount  right  of  way  was  a  breach  of  the  covenant  of  warranty,  when 
the  purchaser  had  notice  of  it,  yet,  that,  nevertheless,  this  would  not  con- 
stitute an  eviction  when  the  purchaser  had  such  notice ;  but  this  is  hardly  the 
correct  manner  of  stating  the  proposition,  for  in  both  cases  he  is  equally 
evicted,  and  none  the  loss  so  by  reason  of  hw  knowledge;  but  in  the  latter 
instance  he  is  not  allowed  to  detain  the  purchase  money  for  the  reason  that 


672  MAEKETABLE    TITLE    TO    REAL    ESTATE. 

In  respect  to  the  right  to  recover  back  the  purchase  money  the 
rule  in  Pennsylvania  is  the  same  as  that  which  generally  exists 
elsewhere,  namely,  that  if  the  purchaser  has  failed  to  protect  him- 
self by  taking  covenants  for  title  embracing  the  defect  of  which  he 
complains  he  cannot  recover  back  the  purchase  money  by  way  of 
damages  for  breach  of  the  contract.59  If  he  has  taken  such  cove- 
nants and  they  have  been  broken,  he  cannot  recover  back  the  pur- 

the  possible  assertion  of  the  paramount  right  constituted  one  of  the  elements 
of  the  contract,  and  was  within  the  intention  of  both  parties  when  the  deed 
was  made."  The  result  of  this  reasoning  is  that  in  some  cases  the  purchaser 
cannot  detain  the  purchase  money  even  though  there  has  been  an  eviction. 
Tt  is  to  be  observed  that  both  of  the  foregoing  cases  were  those  in  which  relief 
was  claimed  on  account  of  a  physical  incumbrance.  There  would  seem  to  be 
no  doubt  as  to  the  right  of  the  purchaser  to  protect  himself  against  a  known 
pecuniary  incumbrance,  and  to  detain  the  purchase  money  in  case  of  an 
eviction.  Rawle  Covts.  §  347,  et  seq. 

A  purchaser  with  general  warranty  is  chargeable  with  notice  of  an  incum- 
brance caused  by  a  public  highway  through  the  purchased  premises,  and  it 
will  be  conclusively  presumed  that  he  estimated  the  disadvantages  to  the 
premises  thence  ensuing  in  adjusting  the  purchase  price.  But  if  the  incum- 
brance consist  of  a  private  right  of  way  the  rule  is  different,  and  he  will  be 
entitled  to  detain  the  purchase  money  to  the  extent  of  the  damages  caused 
him  by  the  road,  if  he  purchased  without  actual  knowledge  of  the  easement. 
Wilson  v.  Cochran,  48  Pa.  St.  107;  89  Am.  Dec.  574;  Eby  v.  Elder,  122  Pa.  St. 
342;  15  Atl.  Rep.  423.  The  same  rule  has  been  observed  elsewhere.  Butt  v. 
Riffe,  78  Ky.  352.  The  grounds  upon  which  these  decisions  rest,  so  far  as 
they  apply  to  the  public  highway,  is  the  open,  notorious  and  visible  character 
of  the  incumbrance.  It  is  not  easy  to  perceive  why  the  same  reasoning  would 
not  apply  in  the  case  of  a  private  right  of  way  sufficiently  marked  by  travel 
to  attract  the  attention  of  a  purchaser. 

"Moss  v.  Hanson,  17  Pa.  St.  379;  Dorsey  v.  Jackman,  1  S.  &  R.  (Pa.)  42; 
7  Am.  Dec.  611;  Lighty  v.  Shorb,  3  Pa.  447;  34  Am.  Dec.  334;  Kerr  v. 
Kitchen,  7  Pa.  St.  486.  In  Steinhauer  v.  Witman,  1  S.  &  R.  (Pa.)  438,  Judge 
YEATES  admitted  that  money  paid,  where  there  was  a  conveyance  but  no 
covenant,  could  not  be  recovered  back,  and  observed  that  it  was  a  hardship 
but  that  such  was  the  law.  "  To  adopt  a  cant  expression,  '  the  funeral  has 
passed  by,  the  dead  cannot  be  resuscitated.'  But  in  my  sense  of  the  Pennsyl- 
vania system  of  law,  there  is  a  locus  pcenitentm  until  the  money  is  paid. 
Something  remains  in  fieri,  and  the  plain  dictates  of  common  sense  and  com- 
mon honesty  point  out  the  correct  path  to  be  pursued."  It  was  probably  this 
vigorous  language  that  led  to  the  distinction  of  Judge  YEATES  as  the  early 
champion  and  advocate  of  what  is  known  as  "  the  Pennsylvania  equitable 
doctrine  "  as  to  detention  of  the  purchase  money. 

In  a  note  to  the  case  of  Goettel  v.  Sage,  27  Am.  Law  Reg.  (N.  S. )  256, 
1888,  S.  C.,  117  Pa.  St.  298;  10  Atl.  Rep.  889,  it  is  said  that  the  distinction 
between  detention  and  recovery  back  of  the  purchase  money  seems  to  have  dis- 


DETENTION  OR  RESTITUTION  OF  THE  PURCHASE  MONEY.       673 

chase  money  eo  nomine,  by  action  of  assumpsit,  but  must  resort  to 
his  covenants.60  If  the  purchase  money  remains  unpaid  and  the 
covenants  have  been  actually  broken  and  a  present  right  to  recover 
damages  has  accrued  to  the  purchaser,  he  may,  to  prevent  a  circuity 
of  action,  detain  the  purchase  money  to  the  extent  of  such  dam- 
ages.61 It  has  been  held,  however,  in  Pennsylvania,  that  a  stipula- 
tion by  the  vendor,  verbal  or  written,  to  refund  the  purchase  money 
and  reimburse  the  purchaser  for  expenses  incurred  in  case  the  title 
should  fail,  will  not  be  merged  in  a  deed  subsequently  accepted  by 
the  vendee  which  contains  only  a  covenant  of  special  warranty.62 
The  Pennsylvania  equitable  doctrine  will  not  justify  the  purchaser 
in  detaining  the  purchase  money  where  he  is  disturbed  in  the  pos- 
session by  a  mere  wrongdoer.63  Nor  does  it  apply  in  a  case  in  which 

appeared.  The  writer  cites  no  authority  for  this  proposition,  unless  the  cases 
Johnson's  Appeal,  114  Pa.  St.  132;  6  Atl.  Rep.  566;  Wilson's  Appeal,  109 
Pa.  St.  606,  and  Babcock  v.  Day,  104  Pa.  St.  4,  referred  to  in  a  general  way 
by  him,  are  intended  as  such.  In  each  of  these  the  contract  was  rescinded  on 
the  ground  of  mutual  mistake  of  the  parties  respecting  the  title,  a  form  of 
relief  to  the  purchaser  referable  to  entirely  different  principles  from  those 
upon  which  he  is  permitted  to  detain  the  purchase  money  in  Pennsylvania. 
See  Rawle's  Covts.  (5th  ed.,  1887),  §§  335,  351,  where  the  right  of  the  pur- 
chaser in  that  State  to  recover  back  the  purchase  money  (as  damages)  where 
he  has  failed  to  take  covenants,  is  denied.  Also,  Farmers'  Bank  v.  Galbraith, 
10  Pa.  St.  490;  Phillips  v.  Scott,  2  Watts  (Pa.),  318;  Cronister  v.  Cronister, 

1  W.  &  S.    (Pa.)   442;  Frederick  v.  Campbell,  13  S.  &  R.    (Pa.)    136;   Boar 
v.  McCormick,  1  S.  &  R.   (Pa.)    166. 

"Rawle  Covts.    (5th  ed.)    pp.  554,  576,  n. 

"Christy  v.  Reynolds,  16  S.  &  R.  (Pa.)  258;  Ives  v.  Niles,  5  Watts  (Pa.), 
323;  Poyntell  v.  Spencer,  6  Pa.  St.  257;  Wilson's  Appeal,  109  Pa.  St.  606. 
42  Close  v.  Zell,  141  Pa.  St.  390;  21  Atl.  Rep.  770,  citing  Drinker  v.  Byers, 

2  Pen.  &  W.   (Pa.)  528;  Richardson  v.  Gosser,  26  Pa.  St.  335;  Cox  v.  Henry, 
32  Pa.  St.  18.    The  purchaser  having  been  induced  to  accept  the  conveyance  in 
consideration  of  such  agreement,  the  rule  against  the  admission  of  parol  evi- 
dence to  alter  a  written  contract  does  not  apply  in  such  case.     Walker  v. 
France,  112  Pa.  St.  203;  5  Atl.  Rep.  208. 

"Spear  v.  Allison,  20  Pa.  St.  200. 

43 


674  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

the  purchase  was  made  at  a  sale  under  a  decree  of  court,*4  or  a  sale 
by  a  sheriff  or  other  officer.65 

Rules  in  respect  to  the  detention  of  the  purchase  money,  in  many 
respects  similar  to  those  which  prevail  in  the  State  of  Pennsyl- 
vania, exist  in  the  States  of  Texas  and  South  Carolina,  and  may  be 

"  Fox  v.  Mensch,  3  Watts  (Pa.),  493;  King  v.  Gunnison,  4  Pa.  St.  171.  The 
purchaser  may,  it  seems,  object  to  the  title  before  confirmation  of  the  sale. 
Kennedy's  Appeal,  4  Pa.  St.  149.  This  is  unimportant,  however,  as  respects 
the  practical  application  of  the  rule  stated  in  the  text,  since  there  can  be  no 
valid  conveyance  until  the  sale  has  been  confirmed.  Bashore  v.  Whisler,  3 
Watts  (Pa.),  493,  where  it  was  said:  "It  cannot  now  be  questioned  that  a 
defendant  may  allege  defect  of  title  in  the  whole  or  in  part,  as  a  defense  in 
a  suit  brought  by  a  vendor  against  a  vendee  to  recover  unpaid  purchase 
money.  This  principle,  which  was  first  ruled  in  Str-:nhauer  v.  Witman,  1  S. 
&  R.  (Pa.)  438,  has  been  since  affirmed  in  Hart  v.  Porter,  5  S.  &  R.  (Pa.) 
200,  and  in  other  cases  to  which  it  is  unnecessary  particularly  to  refer. 
Although  this  principle  as  applied  to  private  contracts  is  undoubted,  yet  it 
has  never  beer,  understood,  either  by  the  profession  or  the  public  to  be  appli- 
cable to  judicial  sales.  In  Friedly  v.  Scheetz,  9  S.  &  R.  (Pa.)  156;  11  Am. 
Dec.  691,  it  was  ruled  that  a  sheriff's  sale  cannot  be  objected  to  by  the  pur- 
chaser, merely  on  the  ground  of  defect  of  title,  but  that  in  all  such  cases  it  is 
binding  except  where  there  be  fraud  or  misdescription  of  the  property  in  some 
material  respect.  It  was  also  ruled  in  the  same  case,  that  a  purchaser  cannot 
object  to  a  sheriff's  sale  because  of  a  defect  of  title  of  which  he  had  notice. 
That,  therefore,  when  he  has  bought  after  being  publicly  notified  at  the  sale 
of  such  defect,  he  cannot  give  evidence  of  want  of  title  in  a  suit  brought 
against  him  for  the  purchase  money.  The  doctrine  of  Steinhauer  v.  Witman 
does  not  extend  to  judicial  sales,  nor  has  it  been  contended  by  any  one  that 
the  usage  asserted  and  maintained  by  Justice  YEATES  extended  to  them.  At 
a  judicial  sale  the  interest  of  the  debtor  and  no  more  is  sold.  The  purchaser 
acquires  the  title  such  as  he  held  it.  There  is  no  warranty  of  title;  and  if 
the  vendee  of  the  sheriff  purchases  without  a  sufficient  examination  it  is  his 
fault,  and  is  a  matter  with  which  the  debtor  has  no  concern.  He  agrees  to 
run  the  risk  of  the  title.  The  rule  is  caveat  cmptor." 

"Friedly  v.  Scheetz,  9  S.  &  R.  (Pa.)  161;  11  Am.  Dec.  691;  Weidler  v. 
Bank,  11  S.  &  R.  (Pa.)  134. 

The  Pennsylvania  equitable  doctrine  has  resulted  in  several  peculiarities,  if 
not  incongruities.  For  example :  ( 1 )  Under  some  circumstances  the  purchaser 
has  greater  rights  as  a  plaintiff  than  as  a  defendant;  thus,  the  fact  that  he 
was  aware  of  the  defect  of  title  at  the  time  he  took  a  conveyance  with  cove- 
nants embracing  the  defect  will  not  affect  his  right  to  recover  on  the  covenant. 
This  is  the  rule  everywhere.  But  if  with  knowledge  of  the  defect  he  took  no 
covenant  he  cannot,  as  a  general  rule,  detain  the  purchase  money.  (2)  Under 
other  circumstances  he  has  greater  rights  as  a  defendant  than  as  plaintiff: 
thus,  as  we  have  heretofore  seen,  if  he  takes  a  deed  without  covenants  he  may, 
as  defendant,  detain  the  purchase  money  if  he  was  ignorant  of  the  defect  of 
title  when  the  deed  was  made,  while  under  the  same  circumstances  he  could 


DETENTION   OE  RESTITUTION  OF  THE  PCECHASE  MONEY.       675 

seen  in  a  foregoing  part  of  this  work.66  Some  apology  is  due  the 
student  for  considering  at  such  length  rules  relating  to  the  deten- 
tion of  the  purchase  money  applicable  only  in  particular  localities. 
The  rules  in  question  mark  the  greatest  innovations  and  inroads 
upon  the  doctrines  of  the  common  law  in  that  regard  that  have  been 
made  in  America,  and  it  has  been  deemed  expedient  to  set  them 
forth  with  considerable  particularity. 

have  no  relief  whatever  as  plaintiff.  And  again,  he  may  in  such  case  exercise 
his  right  to  detain  the  purchase  money  though  he  has  never  been  evicted,  while 
if  he  had  taken  a  conveyance  with  covenants  of  warranty  he  could  neither 
detain  the  purchase  money,  nor  recover  it  back  as  damages,  unless  he  had 
been  actually  or  constructively  evicted.  (3)  In  Wilson  v.  Cochran,  46  Pa.  St. 
230,  it  is  said  that  the  vendee  may  detain  the  purchase  money  to  the  extent 
which  he  would  be  entitled  to  recover  damages  upon  his  covenants,  and  that 
he  is  not  obliged  to  restore  possession  to  his  vendor  before  or  at  the  time  of 
availing  himself  of  such  defense,  from  which  it  is  to  be  inferred  that  he  may 
make  such  defense  though  he  has  not  been  evicted ;  and  yet  in  the  same  opinion 
it  is  said  that  the  right  to  detain  the  purchase  money  is  in  the  nature  of  an 
action  on  the  covenant,  and  that  the  vendee  who  seeks  to  detain  by  virtue  of 
a  covenant  of  warranty  is  as  much  bound  to  prove  an  eviction  as  if  he  were 
plaintiff  in  an  action  of  covenant.  It  will  be  remembered  that  there  are 
several  decisions  supporting  both  of  these  propositions.  It  is  difficult  to  per- 
ceive of  what  benefit  to  the  purchaser  is  the  permission  to  make  a  certain 
defense  without  restoring  the  possession,  when  his  right  to  make  such  a  de- 
fense is  altogether  predicated  upon  the  fact  that  he  has  been  turned  out  of  the 
possession,  or  has  never  been  able  to  get  possession.  But  these  inconsistencies 
or  incongruities  are  perhaps  no  more  illogical  than  the  universal  rule  which 
permits  the  purchaser  to  detain  the  purchase  money  where  he  is  entitled  to 
recover  damages  for  breach  of  a  covenant,  and  denies  him  the  right  to  recover 
back  that  which  has  been  already  paid.  The  foregoing  observations  have  been 
made  merely  to  illustrate  the  difficulties  and  perplexities  into  which  a  partial 
departure  from  the  rules  of  the  common  law  controlling  the  rights  of  the 
grantee  have  led.  The  remedy  would  seem  to  be  either  to  maintain  a  strict 
adherence  to  those  rules,  or  to  cut  them  up  root  and  branch  and  supply  their 
place  with  others  framed  in  the  spirit  of  the  civil  law  which  rejects  the 
maxim  caveat  emptor,  and  decrees  the  reimbursement  of  the  purchaser  wher- 
ever he  loses  the  estate  through  defective  title,  the  risks  of  which  he  did  not 
accept,  without  regard  to  the  existence  or  non-existence  of  covenants  for 
title  on  the  part  of  the  vendor. 

""Ante,  pp.  449,  451.  In  Louisiana  it  is  provided  by  statute  that  the 
grantee,  if  evicted  under  a  superior  title,  is  entitled  to  a  return  of  the  pur- 
chase money,  though  there  was  no  warranty  of  the  title,  unless  he  knew  of 
the  defects  in  his  grantor's  title,  and  purchased  at  his  peril.  Ellis  v.  Cross- 
ley,  119  Fed.  Rep.  779. 


CHAPTER  XXVIII. 

OF  RESTITUTION  OF  THE  PURCHASE  MONEY  WHERE  THERE  ARE 
COVENANTS  FOR  TITLE. 

GENERAL  RULE.    §  272. 
EXCEPTIONS.     §  273. 

§  272.  GENERAL  RULE.  We  have  seen  that  after  a  contract 
for  the  sale  of  lands  has  been  executed  by  a  conveyance  to  the 
purchaser,  he  may,  for  the  avoidance  of  circuity  of  action,  detain 
the  purchase  money  in  all  cases  where  there  has  been  such  a  breach 
of  the  covenants  for  title,  as  would  entitle  him  to  recover  sub- 
stantial damages  against  the  grantor.  This,  however,  is  solely  for 
the  avoidance  of  circuity  of  action,  and  he  can  in  no  case,  after 
the  contract  has  been  executed,  recover  back  the  purchase  money 
as  such.  We,  therefore,  state  the  following  proposition : 

PROPOSITION  VI.  After  a  contract  for  the  sale  of  lands  has  been 
executed  by  a  conveyance,  with  covenants  for  title,  the  purchaser 
cannot,  though  he  has  been  evicted  by  one  claiming  under  a  para- 
mount title,,  or  has  discharged  an  incumbrance  on  the  estate,  recover 
back  the  purchase  money  eo  nomine,  either  by  suit  in  equity,  or  by 
action  against  the  vendor  for  money  had  and  received  to  the  plain- 
tiff's use.  His  remedy  is  upon  the  covenants  for  title.1 

All  the  authorities  agree  upon  this  proposition.  No  case  can  bo 
found  in  which,  after  a  breach  of  any  of  the  covenants  for  title, 

'1  Sugd.  Vend.  (8th  Am.  ed.)  ;  Rawle  Covt.  (5th  ed.)  §  326.  Tillotson  v. 
Grapes,  4  N.  H.  448.  Banks  v.  Walker,  2  Sandf.  Ch.  (N.  Y.)  348;  Hunt  v. 
Arindon,  4  Hill  (X.  Y.),  345;  40  Am.  Dec.  283;  Miller  v.  Watson,  5  Cow. 
(N.  Y.)  195:  4  Wend.  (N.  Y.)  267;  Moyer  v.  Shoemaker,  5  Barb.  (N.  Y.  S. 
C.)  319.  Wilty  v.  Hightower,  6  Sm.  &  M.  (Miss.)  345.  Maner  v.  Washing- 
ton, 3  Strobh.  Eq.  (S.  C.)  171.  Major  v.  Brush,  7  Ind.  232.  Davenport  v. 
\Vhisler,  46  Iowa,  287:  Wilson  v.  Irish,  62  Iowa,  260;  17  N.  W.  Rep.  511. 
Templeton  v.  Jackson,  13  Mo.  78.  Reuter  v.  Lawe,  86  Wis.  106.  Earle  v. 
De  Witt,  6  Allen  (Mass.),  526.  Joyce  v.  Ryan,  4  Greenl.  (Me.)  101.  Van 
Riswick  v.  Wallach,  3  McArth.  (D.  C.)  388.  In  Bradley  v.  Dibrell,  3  Heisk. 
(Tenn.)  522,  where  the  covenantor  included  in  his  conveyance  about  twenty 
acres  to  which  he  had  no  title  and  possession  of  which  was  not  delivered  to 
the  covenantee,  compensation  for  the  deficiency  was  dec/eed  to  the  covenantee. 
There  was  a  constructive  eviction  here  and  the  plaintiff  might  have  recovered 
at  law  on  his  covenants,  but  relief  in  equity  seems  to  have  been  granted  on 


BESTBICTION  OF  PUBCHASE-MONEY.  677 

the  covenantee  has  been  permitted  to  recover  back  the  purchase 
money,  eo  nomine,  in  an  action  for  money  had  and  received  to  the 
plaintiff's  use.  But  this  rule  is  comparatively  of  little  importance 
to  the  purchaser  where  an  actual  breach  of  the  covenants  has  oc- 
curred, for,  in  an  action  on  the  covenant,  the  damages  are  measured 
by  the  purchase  money,  so  that,  practically,  the  purchase  money 
is  recovered  back  in  this  form.2 

If  the  purchaser  cannot  recover  back  the  purchase  money,  eo 
nomine,  after  a  breach  of  the  covenant  has  occurred,  a  fortiori  he 
cannot  recover  it  back  before  the  happening  of  the  breach.  As 
respects  the  covenant  of  seisin,  which  is  broken  as  soon  as  made  if 
the  covenantor  have  no  title,  we  have  seen  that  a  purchaser  will, 
in  some  of  the  States,  be  allowed  to  detain  the  purchase  money, 
if  it  clearly  appears  that  the  title  is  worthless,  and  he  tenders  a 
reconveyance  to  the  grantor.3  But  there  seems  to  be  no  case  in 
which  the  covenantee  has  been  suffered  to  recover  back  the  purchase 
money  upon  like  conditions.4  A  different  rule  prevails  at  the  civil 
law.  If  the  purchaser  does  not  get  such  a  title  as  his  contract 

the  ground  of  fraud  by  the  vendor.  In  Fitzpatrick  v.  Hoffman,  (Mich.)  62 
N.  W.  Rep.  349,  it  was  held  that  a  grantee  with  warranty  who  had  been  com- 
pelled to  satisfy  to  an  adverse  claimant  the  value  of  timber  cut  from  the 
warranted  lands,  might  recover  the  amount  so  expended  in  assumpsit  against 
the  grantor. 

1  It  is  frequently  said,  as  in  Kerr  v.  Kitchen,  7  Pa.  St.  486,  that  a  pur- 
chaser cannot  recover  back  the  consideration  money  after  acceptance  of  a 
conveyance,  unless  there  be  fraud  or  warranty.  This  is  an  expression  likely 
to  mislead  unless  it  is  borne  in  mind  that  the  damages  for  a  breach  of  war- 
ranty are  measured  by  the  consideration  money.  Strictly  speaking  he  re- 
oovers  damages  for  the  fraud  or  breach  of  warranty  and  not  the  consideration 
money  eo  nomine. 

'Ante,  Ch.  26. 

4  Mr.  Rawle  says  in  this  connection:  "It  would  at  first  sight  seem  imma- 
terial whether  the  position  of  the  purchaser  were  that  of  a  defendant  resist- 
ing payment  of  the  purchase  money,  or  that  of  a  plaintiff  seeking  to  recover 
it  back  in  an  action  for  money  had  and  received,  as  there  would  seem  to  be 
no  reason  on  principle  why,  if  the  purchaser  have  a  right  permanently  to 
detain  unpaid  purchase  money  on  the  ground  of  a  defect  of  title,  he  should 
bp  prevented  from  recovering  back  that  for  which  he  has  received  no  value. 
But  the  position  of  a  purchaser  of  real  estate  as  a  plaintiff,  must  at  law 
necessarily  be  confined  to  a  suit  upon  the  covenants  in  his  deed,  which  suit 
(though  the  same  end  be  obtained  by  means  of  it)  depends  to  some  extent 
upon  different  principles  and  machinery  from  an  action  which  seeks  to  rescind 
the  contract  and  recover  back  its  consideration.  Henoe,  it  may  be  safely  said 


678  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

requires,  he  can,  irrespective  of  the  existence  of  covenants  for  title, 
recover  back  the  purchase  money,5  upon  condition  only  that  he 
restore  the  premises  to  the  vendor.6  Nor  in  such  a  case  can  he 
recover  upon  a  contemporaneous  agreement  by  the  vendor  to  refund 
the  purchase  money  if  the  title  should  fail.  All  such  agreements 
are  merged  in  the  conveyance,  and  the  purchaser  must  seek  his 
remedy  on  the  covenants  therein  contained,  if  any.7  Neither  can 
the  covenantee,  upon  breach  of  the  covenants  for  title,  maintain  a 
bill  in  equity  to  compel  the  vendor  to  restore  the  purchase  money 
paid.  His  remedy  at  law  upon  the  covenants  is  complete.8 

If  the  purchaser  accept  a  conveyance  of  the  premises  from  a 
third  person  instead  of  the  seller,  and  is  afterwards  evicted  by  one 

that,  at  law,  a  purchaser  has  no  right,  after  the  execution  of  his  deed,  to 
recover  back  his  consideration  money  on  the  ground  of  a  defect  or  failure  of 
title.  His  remedy  in  such  case  is  by  an  action  of  covenant,  and  not  by  an 
action  of  assumpsit.  But  when  the  position  of  the  purchaser  is  that  of  a 
defendant,  although  '  the  technical  rule  remits  him  back  to  hia  covenants  in 
his  deed,'  yet,  as  has  beeji  said,  it  is  now  considered  that  he  should  not  be 
compelled  to  pay  over  purchase  money  which  he  might  the  next  day  recover 
in  the  shape  of  damages  for  a  breach  of  his  covenants,  and  hence,  to  prevent 
circuity  of  action,  the  defense  at  law  of  a  failure  of  title  has  been  in  some 
cases  allowed." 

s  Bates  v.  Delavan,  5  Paige  Ch.  (N.  Y.)  306,  where  it  was  said  by  WAL- 
WOBTH,  Ch. :  "  By  the  civil  law  an  action  of  redhibition,  to  rescind  a  sale  and 
to  compel  the  vendor  to  take  back  the  property  and  restore  the  purchase 
money,  could  be  brought  by  the  vendee,  wherever  there  was  error  in  the  es- 
sentials of  the  agreement,  although  both  parties  were  ignorant  of  the  defect 
which  rendered  the  property  sold  unavailable  to  the  purchaser  for  the  pur- 
poses for  which  it  was  intended.  *  *  *  I  agree,  however,  with  the  learned 
commentator  on  American  Law  (2  Kent  Com.  C2d  ed.l  473),  that  the  weight 
of  authority  both  in  this  State  and  in  England  is  against  this  principle,  so 
far  as  a  mere  failure  of  title  is  concerned,  and  that  the  vendee  who  has  con- 
summated his  agreement  by  taking  a  conveyance  of  the  property,  must  be 
limited  to  the  rights  which  he  has  derived  under  the  covenants  therein,  if 
he  has  taken  the  precaution  to  secure  himself  by  covenants."  In  Louisiana 
where  legislation  is  cast  in  the  moulds  of  the  civil  law,  the  purchaser  may 
upon  a  complete  failure  of  the  title,  recover  back  the  purchase  money  eo 
nomine,  though  he  has  taken  a  conveyance  with  warranty.  Boyer  v.  Amet, 
41  La.  Ann.  725. 

•Brown  v.  Reeves,  19  Mart.  (La.)  235.    2  Kent  Com.  (llth  ed.)  621  (472). 

TEarle  v.  De  Witt,  6  Allen  (Mass.),  533.  The  conveyance  in  this  case  con- 
tained no  covenant  embracing  the  defect  of  title  of  which  the  plaintiff  com- 
plained. The  decision  is,  therefore,  with  stronger  reason,  an  authority  for 
the  proposition  stated  above. 

•Ohling  v.  Luitjens,  32  111.  23;  Beebe  v.  Swartwout,  3  Gil.  (111.)   168. 


RESTRICTION    OF    PURCHASE-MONEY.  679 

holding  a  better  title,  he  is,  in  the  absence  of  fraud,  without,  remedy 
against  the  seller.  His  remedy  is  upon  the  covenants  in  the  deed 
which  he  accepted.9 

§  273.  EXCEPTIONS.  The  rule  that  the  purchaser  cannot  re- 
cover back  the  purchase  money  after  the  contract  has  been  exe- 
cuted by  a  conveyance  with  covenants  for  title  does  not  apply 
where  by  mistake  there  is  no  such  land  as  the  deed  purports  to 
convey,10  nor  where  the  deed  is  so  defective  that  it  is  absolutely 
inoperative  as  a  conveyance.11 

•Baker  v.  Savidge,  53  Neb.  146;  73  N.  W.  Rep.  543. 

10  D'Utricht  v.  Melchor,  1  Dall.  (Pa.)  428.  In  this  case  it  was  objected  that 
the  covenantee's  remedy  was  by  action  on  the  covenant,  or  by  action  of  deceit, 
and  that  judgment  against  the  defendant  in  the  action  brought  could  not  be 
y>leaded  in  bar,  if  covenant  should  afterwards  be  brought.  But  the  court 
held  that  assumpsit  would  lie. 

"Tollensen  v.  Gunderson,  1  Wis.  104  (115).  There  was  no  lack  of  proper 
words  of  conveyance  in  the  deed  in  this  case;  the  trouble  lay  in  the  descrip- 
tion of  the -premises,  which  was  "the  northeast  quarter  of  the  west  half,  con- 
taining twenty-acres,"  without  identifying  the  "  west  half." 


CHAPTER  XXIX. 

OF   DETENTION    OR   RESTITUTION   OF    THE   PURCHASE-MONEY   IK 

CASES  OF  FRAUD. 

GENERAL  BULE.     {  274. 
EXECUTED  CONTRACT.    §  275. 
WAIVER   OF   FRAUD.     §   276. 

§  274.  GENERAL  RULE.  Fraud  by  the  vendor  in  misrepresent- 
ing or  concealing  facts  material  to  the  validity  of  his  title,  sweeps 
away,  as  a  general  rule,  all  distinctions  between  executory  and 
executed  contracts,  with  respect  to  the  right  of  the  purchaser  to 
recover  back  or  detain  the  purchase  money  on  failure  of  the  title. 
What  acts  and  conduct  of  the  vendor  constitute  such  fraud  has 
already  been  considered.1 

PROPOSITION  VII.  //  the  vendor  fraudulently  induced  the  pur- 
chaser to  accept  a  bad  title,  the  latter  may,  at  law,  recover  back 
or  detain  the  purchase  money  as  damages,  whether  the  contract  is 
executory  or  has  been  executed;  and,  if  executed,  whether  the  con- 
veyance was  with  or  without  covenants  for  title;  and,  if  with  cove- 
nants for  title,  whether  those  covenants  have  or  have  not  been 
broken.2 

As  a  general  rule,  the  purchaser  cannot  maintain  an  action  to 
recover  back  the  purchase  money  on  the  ground  that  the  vendor  has 
been  guilty  of  fraud  in  respect  to  the  title,  unless  he  shows  that  he 
has  actually  rescinded  the  contract,  notified  the  vendor  of  his  in- 
tent to  rescind,  and  has  offered  to  restore  the  premises  to  the 
vendor.3  The  purchaser,  however,  is  not  bound  to  rescind  in  order 

'Ante,  ch.  11.     See,  also,  post,  ch.  34. 

J2  Sugd.  Tend.  (8tb  Am.  ed.)  chs.  13  and  15;  2  Warvelle  Vend.  917;  Rawle 
Corts.  (5th  ed.)  55  167,  322.  Post,  ch.  35.  Ante,  ch.  11.  Edwards  v.  Me- 
Leay,  Coop.  308.  Young  v.  Harris,  2  Ala.  111.  Diggs  v.  Kirby,  40  Ark.  420; 
Sorrells  v.  McHenry,  38  Ark.  127.  Coffee  v.  Newsom,  2  Kelly  (Ga.),  460. 
Haight  v.  Hayt,  19  N.  Y.  474.  Van  Lew  v.  Parr,  2  Rich.  Eq.  (S.  C.)  338. 
Lamb  v.  Smith,  6  Rand.  (Ya.)  552.  Fristoe  v.  Latham,  18  Ky.  Law  R.  157: 
36  S.  W.  Rep.  920. 

1  Pearsoll  v.  Chapin,  44  Pa.  St.  9;  Babcock  v.  Case,  61  Pa.  St  427;  10  Am. 
Dec.  654 :  Morrow  v.  Rees.  69  Pa.  St.  368. 


DETENTION  OR  RESTITUTION  OF  PURCHASE-MONEY.  681 

to  obtain  relief  in  a  case  of  fraud.  He  may  affirm  the  contract, 
keep  the  premises,  and  maintain  an  action  of  deceit  to  recover 
damages  from  the  vendor.4  In  most  cases,  this  is  the  better  course 
for  him  to  pursue,  where  the  purchase  money  has  been  fully  paid, 
because  in  such  an  action  his  recovery  is  not  limited  to  the  con- 
sideration money;  he  may  recover  damages  for  the  loss  of  his 
bargain,  though  they  be  greatly  in  excess  of  the  consideration 
money  and  interest,  while,  it  is  apprehended,  he  could  not  recover 
less  than  the  purchase  money  and  interest.  These  observations 
apply  as  well  where  the  contract  has  been  executed  by  a  conveyance 
with  covenants  for  title,  as  where  it  is  executory,5  for  the  measure 
of  damages  upon  a  substantial  breach  of  the  covenants  for  title  is 
the  purchase  money,  with  interest.  If  the  purchaser  seeks  relief 
in  equity,  he  can  have  a  return  of  his  purchase  money,  but  no  dam- 
ages, because  the  remedy  at  law  in  that  respect  is  complete.6  There 
can  be  no  question  of  the  right  of  the  purchaser  to  recover  back7  or 
to  detain8  the  purchase  money  where  the  contract  is  executory  and 
the  vendor  has  been  guilty  of  fraud  respecting  the  title,  for  he  has 
that  privilege,  though  there  has  been  no  fraud  and  the  title  has 
merely  failed,  except,  of  course,  in  cases  where  he  has  waived  his 

4  Ante,  §  101.  Gwinther  v.  Gerding,  3  Head  (Tenn.),  198.  White  v.  Seaver, 
25  Barb.  (N.  Y.)  235,  where,  however,  the  purchaser  elected  to  rescind.  The 
converse  of  this  proposition  is  also  true.  The  purchaser  is  not  bound  to  re- 
sort to  his  remedy  at  law  for  damages,  but  may  proceed  in  equity  to  rescind 
the  contract.  Bodley  v.  Bosley,  1  Barb.  Ch.  (N.  Y.)  125.  "Courts  of  equity 
have  generally  concurrent  jurisdiction  with  common-law  courts  in  those  cases 
where  common-law  courts  have  jurisdiction  because  of  fraud;  and  though, 
where  the  vendor  has  fraudulently  misrepresented  the  quantity  of  land,  and 
thus  induced  the  vendee  to  purchase,  a  common-law  suit  for  deceit  would  lie, 
yet  this  is  concurrent  with  the  right  of  the  vendee  to  stay  the  collection  in  a 
court  of  equity  till  abatement  has  been  made."  Kelly  v.  Riley,  22  W.  Va.  250. 

•Ante,  "Merger,"  ch.  27,  §  270. 

«2  Warvelle  Vend.  955.  Robertson  v.  Hogshead,  3  Leigh  (Va.),  723  (667). 
Bodley  v.  Bodley,  1  Sandf.  Ch.  (N.  Y.)  125. 

TRawle  Covts.  (5th  cd.)  §§  319,  et  seq.;  Dart's  V.  &  P.  612;  2  Warvelle 
Vend.  834,  851,  952.  Wade  v.  Thurman,  2  Bibb  (Ky.),  583,  citing  Co.  Litt. 
384a,  Butler's  note,  and  Com.  Dig.  236.  Lyon  v.  Anable,  4  Conn.  350.  Spoor 
v.  Tilson,  97  Va.  279;  33  S.  E.  Rep.  609. 

'Authorities  cited,  supra.  Kerr  on  Fraud  (Am.  ed. ),  330.  Green  v. 
Chandler,  25  Tex.  148.  Settle  v.  Stephens,  lg  Tex.  Civ.  App.  695:  45  S.  W. 
Rep.  969.  In  such  a  case,  the  purchaser  must  show  that  the  vendor  inten- 
tionally misrepresented  or  concealed  some  fact  materially  affecting  the  title. 
Camp  v.  Pulver.  5  Barb.  (N.  Y.)  91. 


682  MAEKETABLE    TITLE    TO    EEAL    ESTATE. 

objections  to  the  title,  or  where  the  vendor  has  the  right  to  remove 
them.9 

If  he  gives  notice  of  rescission  based  solely  on  the  failure  of  the 
abstract  to  show  a  good  title,  he  cannot  afterwards  claim  a  right  to 
rescind  on  the  ground  of  false  representations  as  to  the  title.10 

The  remedy  by  action  to  recover  back  the  purchase  money  due 
upon  an  executory  contract  for  the  sale  of  lands  where  the  vendor 
was  guilty  of  fraud  respecting  the  title,  is  concurrent  with  his 
remedy  at  law  for  damages  in  an  action  of  deceit,11  and  in  equity, 
for  a  rescission  of  the  contract  and  return  of  the  purchase  money.12 
At  common  law  neither  failure  of  the  consideration,13  nor  fraud,14 
in  the  procurement  of  a  contract  to  pay  money,  evidenced  by  a 
sealed  instrument,  could  be  set  up  at  law  in  defense  of  an  action  on 
that  instrument,  the  defendant  being  remitted  to  equity  for  relief. 
But  now,  by  statute  in  most  of  our  States  equitable  defenses  are 
fully  allowed  in  actions  on  contracts,  so  that  if  the  purchase  money 
of  land  be  secured  by  bond  or  other  sealed  instrument,  the  defense 
that  the  promise  to  pay  was  induced  by  the  vendor's  fraudulent 
representations  as  to  the  title,  may  be  made  at  law,  as  well  as  in 
equity.15 

•Ante,  §  184.  Post,  §  329.  Webster  v.  Haworth,  8  Cal.  21;  78  Am.  Dec. 
287.  Here  the  purchaser  had  bought  at  a  sale  under  execution,  the  execution 
creditor  falsely  stating  that  his  judgment  was  the  first  lien  on  the  land.  The 
court  said  that  the  fact  that  the  purchaser  might  have  discovered  the  falsity 
of  the  statement  by  examining  the  public  records  did  not  affect  his  right  to 
relief.  Before  such  an  examination  could  have  been  had,  the  sale  would  have 
been  over  and  the  opportunity  to  purchase  would  have  been  lost.  Benedict 
v.  Hunt,  32  Iowa,  27,  was  a  suit  by  a  mortgagee  against  one  who  had  pur- 
chased from  the  mortgagor  and  assumed  the  payment  of  the  mortgage.  It 
was  held  that  the  fraudulent  representations  of  the  mortgagor  respecting  the 
title  were  no  reason  for  denying  a  foreclosure  of  the  mortgage,  but  was  a  de- 
fense against  the  plaintiff's  claim  for  a  personal  judgment  against  the  pur- 
chaser. 

"Hawes  v.  Swenzey,  123  Iowa,  51;  98  N.  W.  Rep.  586. 

11  Ante,  ch.  2. 

"As  in  Smith  v.  Robertson,  23  Ala.  312. 

"Vrooman  v.  Phelps,  2  Johns.  (N.  Y.)  178.  1  Waite's  Actions  &  Defenses, 
701. 

"Wyche  v.  Macklin,  2  Rand.  (Va.)  426.  Franchot  v.  Leach,  3  Cow.  (N. 
Y.)  506.  Rogers  v.  Colt,  1  Zab.  (N.  J.  L.)  704.  Holly  v.  Younge,  27  Ala. 
203. 

18 1  Waite's  Actions  &  Defenses,  701,  §  3.  Case  v.  Boughton,  11  Wend.  (N. 
Y.)  106.  Mr.  Warvelle,  in  his  work  on  Vendors,  page  853,  says  that  as  a  rule 


DETENTION  OR  RESTITUTION  OF  PURCHASE-MONEY.  683 

§  275.  EXECUTED  CONTRACTS.  If  the  purchaser  accepts  a  con- 
veyance in  ignorance  of  the  fraud  of  his  vendor  in  relation  to  the 
title,  he  may,  in  an  action  for  money  had  and  received  to  his  use, 
recover  back  the  purchase  money  paid,  whether  the  conveyance 
was  with18  or  without  covenants"  for  title.  And  in  a  like  case  he 
may  detain  the  purchase  money,  if  unpaid,13  though  there  were  no 

the  only  fraud  which  can  be  shown  at  law  to  avoid  a  deed,  or  the  effect  of 
its  covenants,  is  fraud  in  the  execution,  as  where  it  was  untruly  read,  or 
where  there  has  been  a  substitution  of  one  instrument  for  another,  and  mat- 
ters of  that  kind,  but  that  misappropriation  of  collateral  facts,  fraud  in  the 
consideration,  etc.,  form  no  defense  at  law.  This  was  true  at  common  law  in 
an  action  on  a  sealed  instrument,  and  the  authorities  cited  by  Mr.  Warvelle 
consist  chiefly  of  early  American  decisions  in  which  that  rule  was  applied. 
But  that  rule  has,  as  we  have  seen  (ante,  p.  432),  been  very  generally  relaxed 
by  statute  in  the  American  States,  so  that  in  an  action  on  a  bond  or  other 
sealed  instrument  the  defendant  is  free  to  plead  fraud  in  the  procurement  or 
failure  of  the  consideration,  of  the  contract,  and  is  no  longer  driven  to  equity 
for  relief.  See,  also,  Rawle  Covts.  (5th  ed.)  §§  325,  332,  n.  4;  1  Waite's 
Actions  &  Defenses,  701. 

16  Moreland  v.  Atchison,  19  Tex.  303.  The  cases  illustrating  this  rule  are 
comparatively  few,  because  resort  is  nearly  always  had  to  equity  to  rescind 
the  contract,  cancel  the  conveyance  and  decree  a  restitution  of  the  purchase 
money  where  the  grantor  has  been  guilty  of  fraud.  The  same  may  be  said  of 
cases  where  the  consideration  remains  unpaid.  A  bill  is  generally'  filed  to 
rescind  the  contract  and  restrain  the  grantor  from  proceeding  to  collect. 

"Dart.  V.  &  P.  612,  614;  Rawle  Covts.  (5th  ed.)  §  322;  2  Warvelle  Vend. 
917;  Kerr  on  Fraud  (Am.  ed.),  327.  Pearsoll  v.  Chapin,  44  Pa.  St.  9.  More- 
land  v.  Atchinson,  19  Tex.  303.  Tucker  v.  Gordon,  4  Des.  (S.  C.)  53.  Nelson 
v.  Hamilton  Co.,  102  Iowa,  229;  71  N.  W.  Rep.  206.  A  purchaser  who  stipu- 
lates for  a  perfect  title,  but  is  induced  by  the  fraudulent  representations  of 
the  vendor  to  accept  a  quit-claim  deed,  may  recover  back  the  purchase  money 
or  detain  that  which  remains  unpaid.  Rhode  v.  Alley,  27  Tex.  443,  citing 
Mitchell  v.  Zimmerman,  4  Tex.  75;  51  Am.  Dec.  717;  York  v.  Gregg,  9  Tex. 
85;  Hays  v.  Bonner,  14  Tex.  629.  The  contract,  however,  was  executory  in 
each  of  these  three  cases.  Foster  v.  Gillam,  13  Pa.  St.  340.  In  Treat  v. 
Orono,  26  Me.  217,  it  was  held  that  the  purchase  money  could  only  be  re- 
covered back  from  a  party  to  the  fraud.  There  the  alleged  fraudulent  repre- 
sentations and  the  conveyance  had  been  made  by  a  municipal  officer,  but  the 
purchase  money  had  been  paid  to  the  municipality.  In  Walbridge  v.  Day,  31 
111.  379;  83  Am.  Dec.  237,  it  was  held  that  one  purchasing  from  the  grantee 
did  not  acquire  his  right  to  recover  back  the  purchase  money  from  the  orig- 
inal grantor  who  had  fraudulently  represented  the  title  to  be  good.  See,  also, 
Lejeune  v.  Herbert,  4  La.  Ann.  59. 

18  See  authorities  cited,  supra.  Whitney  v.  Allaire,  1  Comst.  (N.  Y.)  305. 
White  v.  Lowry,  27  Pa.  St.  254.  Concord  Bank  v.  Gregg,  14  N.  H.  331.  It 
is  a  novel  doctrine  that  a  written  warranty  is  a  bar  to  a  suit  or  defense 


684  MAKKETABLE    TITLE    TO    HEAL    ESTATE. 

covenants.19  The  law  does  not  require  a  purchaser  to  take  cove- 
nants as  a  protection  against  fraud.20  If  facts  affecting  the  title 
have  been  concealed  from  the  purchaser,  he  will  be  entitled  to 
relief,  even  though  he  agreed  to  take  the  title  such  as  it  is.21 

Fraud  by  the  grantor  vitiates  the  contract  so  far  as  lie  is  con- 
cerned, and  he  can  claim  no  rights  under  it.  Hence,  it  follows  that 
the  purchaser  may,  where  the  conveyance  contains  covenants  for 
title,  in  case  of  fraud,  detain  the  purchase  money,  whether  the 
covenants  have  or  have  not  been  broken.22  He  cannot  be  compelled 
to  remain,  during  the  time  in  which  the  rights  of  an  adverse 
claimant  may  be  asserted,  in  a  state  of  uncertainty  whether,  on  any 
day  during  that  period,  he  may  not  have  his  title  impeached.23 
Where  the  contract  is  rescinded  for  defect  of  title  concealed  by  the 

founded  on  fraud  in  the  same  transaction,  and  the  cases  are  numerous,  not 
only  that  fraud  vitiates  all  contracts  tainted  by  it,  but  that  it  may  be  set  up 
in  contests  as  to  the  consideration  of  the  sales,  whether  a  warranty  existed 
or  not.  Smith  v.  Babcock,  2  Woodb.  &  M.  (U.  S.)  256.  A  vendor  selling 
land  subject  to  a  lien  for  unpaid  purchase  money,  which  he  does  not  disclose 
to  the  purchaser,  is  guilty  of  fraud,  and  the  purchaser  may  rescind  the  con- 
tract, though  he  holds  under  a  conveyance  with  warranty.  East  Tenn.  Nat. 
Bank  v,  First  Nat.  Bank,  7  Lea  (Tenn.),  420.  Case  may  be  maintained 
against  a  vendor  who  falsely  states  that  there  are  no  incumbrances  on  the 
estate,  though  the  purchaser  holds  under  a  covenant  against  incumbrances. 
Ward  v.  Wiman,  17  Wend.  (N.  Y.)  193;  Wardell  v.  Fosdick,  13  Johns.  (N. 
Y.)  325;  7  Am.  Dec.  383.  Where  the  grantor  fraudulently  concealed  the  fact 
that  certain  persons  were  in  adverse  possession  of  a  part  of  the  land,  the 
purchaser  was  allowed  to  detain  the  unpaid  purchase  money,  though  the  per- 
sons in  possession  disclaimed  any  interest  in  the  land.  Schamberg  v.  Leslie, 
19  Ky.  Law  R.  599;  41  S.  W.  Rep.  265. 

18  See  authorities  cited,  supra.  1  Bigelow  on  Fraud,  415;  Rawle  Covts. 
( 5th  ed. )  §  322.  Diggs  v.  Kirby,  40  Ark.  420.  Tucker  v.  Gordon,  4  Des.  ( S. 
C.)  53.  Rogers  v.  Norton,  101  Ky.  650;  42  S.  W.  Rep.  97. 

20  Walsh  v.  Hall,  66  N.  C.  233. 

21  Farrell  v.  Lloyd,  69  Pa.  St.  239,  248 ;  Lloyd  v.  Farrell,  48  Pa.  St.  73. 

22  See  authorities  cited,  supra.     This  proposition   (in  the  form  of  an  excep- 
tion to  the  general  rule  that  a  purchaser  holding  under  a  deed  with  covenants 
cannot  detain  the  purchase  money,  unless  the  covenants  have  been  broken) 
has  been  reiterated  so  frequently  in  the  decisions,  that  a  citation  of  cases  to 
support  it  seems  almost  an  affectation.     Edwards  v.  McLeay,  Coop.  308;    2 
Swanst.  287.     Stewart  v.  Insall,  9  Tex.  397.     The  general   rule  is  that   the 
vendee  of  land  who  has  not  been  evicted,  must  rely  upon  his  covenants  in  the 
deed,  but  a  fraudulent  sale  is  always  an  exception  to  that  rule.     Oilpin  v. 
Smith,  11  Sm.  &  M.  (Miss.)   109. 

23  1  Sudg.  Vend.   (8th  Am.  ed.)  375  (246). 


DETENTION  OK  RESTITUTION  OF  PURCHASE-MONEY.  685 

vendor,  the  purchaser  will  be  entitled  to  a  decree  for  the  repayment 
of  the  purchase  money,  with  costs,  ana  all  expenses  to  which  he 
had  been  put  relative  to  the  sale,  and  for  repairs  during  the  time 
he  had  possession.24 

In  some  cases  it  has  been  held  that  the  covenantee  cannot  set  up 
fraud  as  a  defense  to  an  action  for  the  purchase  money ;  not,  in- 
deed, because  there  is  a  remedy  over  on  the  covenants  if  the  title 
fail,  but  because  a  court  of  law  cannot  do  complete  justice  between 
the  parties  by  placing  them  in  statu  quo,  and  that  the  remedy  of 
the  covenantee  in  such  case  is  in  equity.25  It  may  be  doubted 
whether  this  doctrine  exists  to  any  great  extent  in  the  United 
States,  in  view  of  generally  prevalent  legislation  admitting  equit- 
able defenses  in  actions  founded  on  contracts.  As  a  general  rule 
there  is  no  doubt  that  fraud  is  equally  cognizable  at  law  as  in 
equity.  The  principal  reason  for  going  into  a  court  of  equity  in 
such  cases  is  to  obtain  a  discovery.28 

A  statement  made  in  good  faith,  false  but  not  fraudulent,  will 
not  entitle  the  purchaser  to  recover  back  the  purchase  money  in  a 
case  to  which  the  covenants  do  not  extend.  The  scienter  or  fraud 
is  the  gist  of  the  action  where  there  are  no  covenants.27  What  con- 
duct or  representations  on  the  part  of  the  vendor  amount  to  fraud 
will  be  found  elsewhere  considered  in  this  work.28  The  purchaser 
has  a  remedy  not  only  against  the  grantor  in  a  case  of  fraud,  but 
against  third  persons  having  an  interest  in  the  transaction  who  aid 
in  practicing  the  deceit.  Thus,  a  note  broker  was  compelled  to 
refund  to  a  mortgagee  money  loaned  on  the  security  of  the  mort- 
gage, he  having  falsely  represented  that  there  were  no  prior  in- 
cumbrances  on  the  property.29 

§  27G.  WAIVER  IN  CASES  OF  FRAUD.  Of  course,  if  the  pur- 
chaser accept  a  conveyance  with  knowledge  of  the  fraud,  he  waives 
all  right  to  rescind  the  contract  because  of  the  fraud,  and  must  look 
to  his  covenants  for  redress.30  And  when  the  fraud  comes  to  his 

:<  1  Sugd.  Vend.    (8tli  Am.  ed.)    375   (246). 

•'Cullum  v.  Branch  Bank,  4  Ala.  35;  37  Am.  Dec.  725;  Stark  v.  Hill,  6 
Ala.  785;  Patton  v.  England,  15  Ala.  71. 

=*  Allen  v.  Hopson,  1  Freem.  Ch.   (Miss.)    276. 

^2  Sugd.  Vend.  (8th  Am.  ed.)  553.    Early  v.  Garrett,  4  Man.  &  Ry.  687. 

28  Ante,  §  101. 

"Turnbull  v.  Gadsden,  2  Strobh.  Eq.    (S.  C.)    14. 

"2  Warvelle  Vend.  919.     Ante,  §  270. 


686  MARKETABLE    TITLE    TO    REAL    ESTATE. 

knowledge  after  the  acceptance  of-  a  conveyance,  he  must  promptly 
exercise  his  right  to  rescind  the  contract.31  It  has  been  held  in 
several  cases  and  there  are  dicta  in  others,  that  if  the  purchaser 
accept  a  conveyance  of  the  premises,  he  cannot  afterwards  maintain 
an  action  to  recover  damages  for  deceit  of  the  vendor  in  respect  to 
the  title;  all  that  passed  between  the  parties  in  the  course  of  the 
negotiation  being  regarded  as  merged  in  the  deed,  and  that  the 
purchaser's  remedy  is  upon  the  covenants,  if  any.32  The  better 
opinion,  however,  seems  to  be  that  only  matters  as  to  which  the 
purchaser  was  informed  can  be  regarded  as  merged  in  the  deed, 
and  that  if  he  were  ignorant  of  the  fraud  which  would  have  avoided 

"Provident  L.  &  Tr.  Co.  v.  Mclntosh,  (Kan.)  75  Pac.  Rep.  498;  Vaughn 
v.  Smith,  34  Oreg.  54;  55  Pac.  Rep.  99.  The  case  Lockridge  v.  Foster,  4 
Scam.  (111.)  570,  affords  a  good  illustration  of  this  rule.  There  the  cove- 
nantee  had  taken  possession  of  the  premises  with  knowledge  of  the  iraud,  and 
the  court,  in  denying  him  relief,  said :  "  Under  the  circumstances,  if  the 
complainant  had  resorted  to  equity  in  proper  time,  and  it  had  appeared  that 
the  vendor  or  his  legal  representatives  were  not  in  a  situation  to  perfect  the 
title,  a  rescission  of  the  contract  might  have  been  obtained.  But  on  discover- 
ing the  fraud,  he  was  at  liberty  to  consider  the  contract  at  an  end,  and  take 
the  necessary  steps  to  procure  its  rescission  or  to  confirm  it,  and  rely  on  his 
covenants  of  warranty  to  make  good  the  failure  of  title.  This  was  a  privi- 
lege on  his  part.  The  election  rested  solely  with  him,  but  he  was  bound  to 
make  it  within  a  reasonable  time.  The  whole  case,  in  our  opinion,  shows 
most  conclusively  that  he  elected  to  confirm  the  contract.  From  his  own 
showing,  he  discovered  the  fraud  in  the  fall  of  1837,  at  the  time  he  took  pos- 
session of  the  land,  before  he  made  any  improvements  on  it,  and  while  a  great 
portion  of  the  purchase  money  was  unpaid.  After  the  discovery  he  proceeded 
to  erect  a  dwelling  house  and  make  valuable  improvements  on  the  premises. 
More  than  four  years  afterwards,  when  sued  for  the  balance  of  the  purchase 
money,  he  makes  no  complaint  and  interposes  no  defense,  but  permits  judg- 
ment to  go  against  him,  and  not  until  a  partial  payment  of  the  judgment 
does  he  manifest  any  disposition  towards  a  rescission  of  the  contract.  *  * 
After  all  these  acts  of  confirmation  and  acquiescence,  and  five  years  subse- 
quent to  the  discovery  of  the  fraud,  he  conies  into  a  court  of  equity,  and  asks 
that  the  contract  may  be  annulled.  We  have  no  hesitation  in  saying  that  he 
is  effectually  concluded  by  his  own  positive  acts  from  attaining  this  object.'' 

"Peabody  v.  Phelps,  9  Cal.  214.  Leonard  v.  Pitney,  5  Wend.  (N.  Y.)  30. 
See,  also,  Peay  v.  Wright.  22  Ark.  198.  The  old  English  cases  of  Roswell  v. 
Vaughn,  1  Cro.  James,  19G,  and  Lysney  v.  Selby,  2  Ld.  Raym.  1119,  have  also 
been  cited  in  support  of  this  view.  In  the  first  case,  however,  there  does  not 
appear  to  have  been  a  conveyance.  Relief  was  denied  the  purchaser  princi- 
pally upon  the  ground  that  the  vendor  was  not  in  possession,  and  that  he 
should  have  looked  more  carefully  to  the  title.  In  Whitney  v.  Allaire,  1 
Comst.  (N.  Y.)  314,  the  right  of  a  covenantee  to  maintain  an  action  to  re- 


DETENTION  OR  RESTITUTION  OF  PURCHASE-MONEY.  687 

the  contract,  lie  loses  none  of  his  rights  by  accepting  the  deed.33  In- 
deed, it  may  be  doubted  whether  in  such  a  case  the  purchaser  would 
be  held  to  have  waived  his  right  to  recover  damages  for  the  fraud. 
The  acceptance  of  -a  conveyance  is  an  election  to  affirm  the  contract, 
but  it  has  been  held  that  the  purchaser  does  not  waive  his  right  to 

cover  damages  for  deceit  respecting  the  title  was  questioned  by  BRONSON,  J., 
dissenting,  who  said,  "  In  the  usual  course  of  business  men  insert  covenants 
in  their  conveyances  of  real  estate  where  it  is  intended  that  the  vendor  shall 
answer  for  the  goodness  of  the  title;  and  it  is  easy  to  see  that  bad  conse- 
quences may  follow  if  the  vendee  shall  be  allowed  to  lay  aside  his  deed,  and 
have  an  action  founded  upon  conversations  about  the  title  pending  the  bar- 
gain. *  *  *  I  do  not  intend  to  express  a  definite  opinion  on  the  point, 
and  have  only  said  enough  to  show  that  it  is  a  grave  question,  which,  as  it  is 
not  necessarily  before  us,  should  not  be  regarded  as  settled  by  our  decision." 
It  may  be  doubted  whether  this  query  would  be  made  in  a  case  in  which  the 
covenantor  had  studiously  concealed  an  incumbrance  or  defect  in  the  title,  as 
in  Prout  v.  Roberts,  32  Ala.  427. 

"Ante,  §  269.  2  Warvelle  Vend.  957.  That  author  attributes  the  cases 
holding  the  opposite  view,  to  the  fact  that  the  grantee  has  his  remedy  over 
for  breach  of  the  covenants  for  title.  Those  cases,  however,  seem  rather  to 
proceed  upon  the  idea  that  the  fraud  is  merged  in  the  conveyance,  whether 
with  or  without  covenants  for  title.  As  to  cases  in  which  there  has  been 
fraud  as  to  the  title  and  also  a  breach  of  the  covenants.  Mr.  Warvelle  per- 
tinently observes,  "  The  liability  of  the  offending  party  is  totally  distinct  in 
either  case.  In  the  one  it  arises  ex  contractu,  in  the  other  ex  dclicto;  and 
the  rule  upon  which  damages  are  awarded  is  different  in  each  instance.  Nor 
is  there  any  inconsistency  in  the  prosecution  of  the  two  remedies,  as  they 
both  proceed  upon  the  theory  of  an  affirmance  of  the  contract,  and  although 
differing  in  form,  one  does  not  allege  what  the  other  denies.  A  recovery  in 
one,  therefore,  will  not  preclude  a  prosecution  of,  or  recovery  in,  the  other, 
although,  of  course,  there  can  be  but  one  satisfaction  for  the  damages  sus- 
tained." Citing  Bowen  v.  Mandeville,  95  N.  Y.  237;  Allaire  v.  Whitney,  1 
Hill  (N.  Y.),  484.  Kimball  v.  Saguin,  (Iowa)  53  N.  W.  Rep.  116,  criticising 
Peabody  v.  Phelps,  supra.  Lee  v.  Dean,  3  Whart.  (Pa.)  315.  Orendorff  v. 
Tallman,  (Ala.)  7  So.  Rep.  821.  Gwinther  v.  Gerding,  3  Head  (Tenn.),  197. 
Bostwick  v.  Lewis,  1  Day  (Conn.),  250;  2  Am.  Dec.  73.  Whitney  v.  Allaire, 
1  Comst.  (N.  Y.)  314,  semble,  BRONSON,  J.,  dissenting;  Monell  v.  Golden,  13 
Johns.  (N.  Y.)  396;  7  Am.  Dec.  390;  Culver  v.  Avery,  7  Wend.  (N.  Y.)  380: 
22  Am.  Dec.  586,  where  the  false  representation  was  made  by  a  public  officer. 
The  court  said:  "Whatever  is  said  or  done  in  good  faith  in  a  treaty  for  a 
sale  and  purchase  is  merged  in  the  purchase  itself  when  consummated  (by 
conveyance),  and  you  cannot  overhaul  it  whether  the  representations  were 
true  or  false;  but  if  they  were  known  to  ~be  false  when  made,  and  have  pro- 
duced damage  to  the  opposite  party,  the  subsequent  consummation  of  the 
agreement  cannot  shield  the  defendant."  Wardell  v.  Fosdick,  13  Johns.  (N. 
Y.)  325;  7  Am.  Dec.  383,  where  the  vendor  sold  land  which  had  no  existence. 
That  fact,  however,  was  considered  immaterial  in  Ward  v.  Wiman,  17  Wend. 


688  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

damages  by  affirming  the  contract  after  discovering  the  fraud.84 
True,  in  such  a  case,  the  purchaser  could  not  rescind  the  contract, 
but  obviously,  the  right  to  rescind,  and  the  right  to  recover 
damages  for  a  fraud  stand  upon  different  grounds,  and  the  waiver 
of  one  is  not  necessarily  a  waiver  of  the  other.  If  the  conveyance 
contained  covenants,  the  practical  difference  between  an  action  on 
the  covenants,  and  an  action  for  deceit  is,  that  in  the  former  action 
he  could  recover  the  purchase  money  only  and  nothing  for  the  loss 
of  his  bargain,  and  no  more  than  nominal  damages  unless  he  had 
been  evicted,  while  in  the  latter  action  his  recovery  would  be 
measured  by  the  actual  damages  sustained. 

(N.  Y.)  192,  196,  where  it  was  said  that  in  a  case  of  fraud  the  purchaser 
might  treat  the  deed  as  a  nullity.  In  Wilson  v.  Breyfogle,  63  Fed.  Rep. 
329  (Civ.  Ct.  App. ),  it  was  held  that  a  grantee  with  warranty  who  had  been 
defrauded  by  fraudulent  representations  as  to  the  title,  might  sue  in  as- 
sumpsit  to  recover  back  the  purchase  money,  but  must  first  reconvey,  or 
offer  to  recovery,  the  premises.  See,  also,  Bowden  v.  Achor  (Ga.),  22  S.  E. 
Rep.  254. 

"Allaire  v.  Whitney,  1  Hill  (N.  Y.),  484.  Allaire  had  leased  certain 
premises  of  Whitney,  the  term  to  begin  at  a  future  day.  Before  that  day  he 
discovered  that  the  lessor  had  fraudulently  represented  that  he  owned  a  part, 
of  the  premises,  nevertheless  he  took  possession  and  obtained  a  lease  from 
the  real  owner  of  the  part  to  which  there  was  no  title.  The  court  deciding 
that  Allaire  had  not  waived  his  right  to  damages,  observed,  "  It  is  not  neces- 
sary to  deny  that  where  a  vendee  or  a  lessee  takes  or  holds  possession  after 
he  has  discovered  the  fraud  of  his  vendor  or  lessor,  he  shall  not  be  allowed 
to  rescind  the  contract,  in  other  words,  to  say,  as  he  may  always  do  in  the 
first  instance,  that  the  whole  is  void.  Certainly  the  jury  might  well  have 
been  instructe'd  in  the  present  case,  that  Allaire  had  made  the  lease  good  by 
election;  that  he  had  waived  the  right  to  consider  it  a  nullity.  That,  how- 
ever, is  a  very  different  matter  from  a  waiver  of  the  cause  of  action  or 
recoupment.  When  a  man  is  drawn  into  a  contract  of  sale  or  demise  by 
fraud,  a  right  of  action  attaches  immediately,  as  much  so  as  if  trespass  had 
been  committed  against  him ;  and  though  he  may  affirm  the  transfer  of 
interest  and  take  the  property,  yet  waiver  is  no  more  predicable  of  the  cause 
of  action,  than  where  a  man  receives  a  delivery  of  goods  that  have  been 
tortiously  taken  from  him.  The  vendor  or  lessor  was  a  wrongdoer  when  he 
committed  the  fraud,  and  no  act  of  the  injured  party  short  of  a  release  or 
satisfaction  will  bar  the  remedy,  though  it  may  mitigate  the  amount  of 
damages."  See,  also,  1  Sugd.  Vend.  (14th  ed. )  251,  where  it  is  said:  "Al- 
though in  equity  a  party  may  be  entitled  to  get  rid  of  a  contract  founded  on 
fraudulent  representations,  still  cases  might  occur  where  a  purchaser  might 
recover  damages  at  law  for  a  false  representation,  and  yet  be  prevented  by 
his  own  conduct  from  rescinding  the  contract  in  equity,  and  the  relief  in 
equity  can  only  be  to  rescind  the  contract.  Damages  or  compensation  must 
be  soiight  at  law." 


OF  RESCISSION  BY  PROCEEDINGS  IN  EQUITY. 
WHERE  THE  CONTRACT  is  EXECUTORY. 

CHAPTER  XXX. 

OF  THE  SUIT  FOR  RESCISSION  PROPER. 

GENERAL  PRINCIPLES.     §  277. 

DEFENSES  TO  SUITS  FOR  SPECIFIC  PERFORMANCE.      §  278. 

PLACING  THE  VENDOR  IN  STATU  QUO.     §  279. 

INTEREST,  RENTS  AND  PROFITS.      IMPROVEMENTS.      §  280.      • 

PLEADING.     §   281. 

PARTIES.     §  282. 

§  277.  GENERAL  PRINCIPLES.  On  failure  of  the  title  the  pur- 
chaser, instead  of  taking  such  steps  at  law  as  amount  to  a  rescission 
of  the  contract,  such  as  bringing  an  action  to  recover  back  the  pur- 
chase money,  or  resisting  proceedings  by  the  vendor  to  collect  the 
same,  may,  while  the  contract  is  executory,  resort  to  a  court  of 
equity  in  the  first  instance  and  ask  that  the  contract  be  formally  re- 
scinded. In  such  case  the  court,  having  before  it  all  parties  in  in- 
terest, may,  if  it  appear  that  the  complainant  is  entitled  to  relief, 
enter  a  decree  rescinding  the  contract  and  adjusting  the  rights  of 
the  parties.  We  have  already  seen  under  what  circumstances  he 
may  have  an  injunction  against  the  collection  of  the  purchase  money 
where  the  contract  is  executory.1  And  the  purchaser  may,  in  any 
proceeding  by  the  vendor  to  enforce  specific  performance  of  the  con- 
tract, show  that  the  title  has  failed  or  is  not  such  as  the  law  will  re- 
quire him  to  accept.  The  fact  that  the  vendor  honestly  believed  his 
title  to  be  good  is  no  ground  for  refusing  rescission.2  The  jurisdic- 
tion of  equity  for  the  rescission  of  executed  contracts  is  limited,  as 
will  be  seen,  chiefly  to  cases  where  the  contract  was  procured  through 
fraud  or  mistake ;  but  where  the  contract  is  executory,  a  complete 
want  of  title  in  the  vendor,  irrespective  of  the  question  of  his  good 
faith,  seems  to  be  always  a  ground  in  equity  for  rescinding  the  con- 

1Ante,  §  250. 

'Boyce  v.  Grundy,  3  Pet.   (U.  S.)   210. 

44 


690  MARKETABLE    TITLE    TO    REAL    ESTATE. 

tract,3  unless  the  purchaser  has  waived  or  lost  his  right  to  require  a 
clear  title ;  or  unless  he  is  bound  by  the  terms  of  his  contract  to  take 
such  title  as  the  vendor  can  make;  or  unless  he  be  no  longer  able 
to  place  the  vendor  in  statu  quo.  It  has  also  been  held  that  equity 
will  not  rescind  the  contract  at  the  suit  of  the  purchaser,  if  the 
defect  of  which  he  complains  might  with  reasonable  diligence  have 
been  discovered  by  him  before  the  contract  was  made.  Thus  it  has 
been  held  that  a  purchaser  who  fails  to  make  reasonable  inquiries 
as  to  possible  dower  rights  in  the  premises,  must  seek  his  remedy 
against  the  vendor  at  law  and  not  in  equity,  if  disturbed  by  the 
widow.4  This  decision  seems  not  to  have  been  generally  followed 
in  America,  though  there  are  many  cases  which  decide  that  the 
purchaser  cannot  fix  fraud  upon  the  vendor  in  failing  to  disclose 
defects  in  the  title  which  might  have  been  discovered  by  the 
exercise  of  ordinary  diligence.5 

It  has  been  held  that  the  right  of  the  purchaser  to  rescind  an 
executory  contract  on  failure  of  the  title  is  not  dependent  on  his 
right  to  maintain  an  action  for  breach  of  the  contract,  and  that  he 
may  rescind  where  he  cannot  maintain  that  action.  Thus,  where 
the  purchaser,  knowing  that  the  vendor  could  not  convey  a  clear 
title,  made  a  sham  offer  of  performance  and  tender  of  the  balance 
of  the  purchase  money,  it  was  held  that  he  could  not  recover  dam- 
ages for  a  breach  of  the  contract,  but  that  he  was  entitled  to  rescind 
the  contract  and  recover  back  what  he  had  already  paid.6  In  an 
early  American  case  it  seems  to  have  been  held  that  want  of  title 

'Smith  v.  Robertson,  23  Ala.  317,  where  it  was  said  that  though  there  may 
be  no  actual  fraud  in  making  a  contract,  a  total  inability  in  one  party  to 
fulfil  it  discharges  the  other,  and  a  court  of  equity  will  annul  a  contract 
which  the  defendant  has  failed  to  perform  or  cannot  perform.  Citing  Bul- 
lock v.  Beemiss,  1  A.  K.  Marsh.  (Ky.)  434;  SKillern  v.  May,  4  Cranch 
(U.  S.),  137.  But  see  Parks  v.  Brooks,  16  Ala.  529,  where  rescission  was 
refused  a  purchaser  who  had  taken  a  bond  for  titles  and  could  not  show  that 
the  obligor  was  insolvent.  As  a  matter  of  fact  suits  in  equity  by  the  pur- 
chaser for  rescission  where  the  contract  is  executory  are  comparatively  infre- 
quent. Usually  the  only  relief  he  claims  is  the  return  of  the  purchase  money, 
and  this  may  be  obtained,  as  a  general  rule,  more  quickly  and  with  less  ex- 
pense in  the  action  for  money  had  and  received  to  the  purchaser's  use.  See 
ante,  ch.  24.  ' 

4Greenleaf  v.  Queen,  1  Pet.  (U.  S.)   138. 

"Ante,  ch.  11.    Contra,  Crawford  v.  Keebler,  5  Lea  (Tenn.),  547. 

•Lewis  v.  White,  16  Ohio  St.  441. 


OF   THE    SUIT    FOB   BESCISSION    PBOPEB.  691 

in  the  vendor  was  no  ground  for  rescinding  an  executory  contract 
for  the  sale  of  lands,  the  purchaser  having  an  adequate  remedy  at 
law  to  recover  back  the  purchase  money  or  to  recover  damages  for 
breach  of  the  contract.7  This  case  does  not  appear  to  have  been 
followed  in  America,  and  its  authority  may  well  be  doubted. 
Courts  of  law  have,  under  the  common-law  system  of  procedure,  no 
power  to  adjust  equities  between  the  parties,  e.  g.,  to  decree  a 
restitution  of  the  premises,  to  settle  claims  for  interest  on  the 
purchase  money 'paid  and  for  improvements  on  the  one  side,  and 
for  rents  and  profits  on  the  other.  On  these  grounds,  irrespective 
of  any  question  of  fraud  or  mistake,  the  jurisdiction  of  a  court  of 
equity  in  such  cases  seems  clear. 

Fraud  of  the  vendor  and  mistake  of  the  parties  in  respect  to  the 
title  are,  of  course,  grounds  for  rescinding  an  executory  contract 
for  the  sale  of  lands.  In  such  cases  the  remedy  in  equity  is  con- 
current with  that  at  law.8  What  constitutes  fraud  in  the  vendor 
has  been  elsewhere  considered.9  The  fact  that  the  agreement  has 
been  reduced  to  writing  will  not  prevent  the  purchaser  from  show- 
ing that  the  vendor,  at  the  time  the  contract  was  closed,  made 
fraudulent  representations  as  to  the  state  of  the  title.  The  rule 
in  this  respect  is  the  same,  whether  the  contract  be  executory  or  has 
been  executed  by  a  conveyance  with  or  without  covenants  for 
title.10 

If  the  objection  to  the  title  be  that  the  vendor  has  no  power  to 
sell  and  convey  the  premises,  it  has  been  held  that  a  suit  for  a 
rescission  of  the  -contract  cannot  be  maintained  by  the  purchaser.11 

1  Hepburn  v.  Dunlop,  1  Wh.  (U.  S.)  ;  Id.  3  Wh.  (U.  S.)  231.  The  failure 
of  the  consideration  is  always  a  ground  for  the  rescission  of  a  contract  for  the 
sale  of  lands.  Hadlock  v.  Williams,  10  Vt.  570.  Greenleaf  v.  Cook,  2  Wh. 
(U.  S.)  13,  16.  Hart  v.  Handlin,  43  Mo.  171. 

•Innes  v.  Willis,  16  Jones  &  S.  (N.  Y.)  188.  Goodman  v.  Rust,  4  T.  B. 
Mon.  (Ky.)  421.  Smith  v.  Robertson,  23  Ala.  312.  Liddell  v.  Sims,  9  Sm. 
&  M.  (Miss.)  596;  Davis  v.  Heard,  44  Miss.  50.  Holland  v.  Anderson,  38 
Mo.  55. 

•Ante,  ch.   11. 

10Sugd.  Vend,  (llth  Eng.  ed.)  53,  586.  Boyce  v.  Grundy,  3  Pet.  (U.  S.) 
210. 

n  Bruner  v.  Meigs,  64  N.  Y.  506,  per  ALUIN,  J.  The  authority  of  this  case 
may  be  doubted.  The  reason  given  for  the  decision  would  apply  in  most  cases 
in  which  the  purchaser  goes  into  equity  for  a  rescission  of  an  executory  con- 


692 

The  reason  assigned  for  this  decision  was  that  the  purchaser  had 
a  perfect  defense  at  law  and  in  equity  to  any  proceeding  by  the 
vendor  to  enforce  the  agreement,  and  that  an  action  by  him  would 
be  necessary.  We  have  already  seen  under  what  circumstances  the 
purchaser  will  be  deemed  to  have  waived  his  right  to  rescind  a  con- 
tract or  to  resist  a  suit  for  specific  performance  on  the  ground  that 
the  title  is  defective.12  Where  the  purchaser  in  a  suit  by  him  for 
rescission,  offers  to  complete  the  contract  if  the  court  shall  be  of 
opinion  that  the  title  is  marketable,  and  the  court  so  decides,  he  is 
estopped  from  urging  further  any  right  to  rescind.13 

§  278.  DEFENSES  TO  SUIT  FOB  SPECIFIC  PERFORMANCE. 
The  purchaser,  when  the  vendor  seeks  to  compel  specific  per- 
formance of  the  contract,  may  of  course  show  that  the  title  is  bad, 
or  doubtful,  and  such  as  he  cannot  be  required  to  accept.14  As  a 
general  rule  wherever  he  has  a  right  to  rescind  the  contract  on  the 
ground  that  the  title  has  failed,  he  may  avail  himself  of  the  same 
facts  as  a  defense  to  a  suit  by  the  vendor  for  specific  performance. 
The  position  of  the  purchaser  in  such  a  case  is  perhaps  stronger 
than  if  he  were  plaintiff,  for  it  has  been  often  held  that  under 
some  circumstances  a  court  of  equity  may  refuse  to  rescind  a  con- 
tract for  the  sale  of  lands  which  it  would  not  specifically  enforce,15 
leaving  the  parties  to  their  remedy  at  law.16  If  the  vendor,  in 
consequence  of  disputes  about  the  title,  turns  the  purchaser  out  of 
possession,  he  cannot  afterwards  insist  upon  a  specific  performance 
of  the  contract,17  Nor  will  he  be  entitled  to  this  relief  if,  subse- 

tract.  Should  the  purchaser  be  compelled  to  await  the  motions  of  the  vendor? 
If  the  purchase  money  was  paid  to  the  latter  he  would  probably  concern 
himself  no  further  about  the  agreement.  . 

"Ante,  "Waiver  of  Objections,"  §  80. 

"Hyde  v.  Heller,  10  Wash.  586;  39  Pac.  Rep.  249. 

"What  matters  are  sufficient  to  render  a  title  doubtful  or  unmarketable 
will  be  hereafter  considered.  Post,  ch.  31. 

"2  Kent  Com.  (llth  ed.)  487.  Mortlock  v.  Buller,  10  Ves.  292.  Jackson 
v.  Ashton,  11  Pet.  (U.  S.)  248;  Dunlap  v.  Hepburn,  1  Wheat.  (U.  S.)  197; 
Morgan  v.  Morgan,  2  Wheat.  (U.  S.)  290.  Beck  v.  Simmons,  7  Ala.  71; 
Park  v.  Brooks,  16  Ala.  529.  Seymour  v.  Delancy,  3  Cow.  (N.  Y.)  530;  15 
Am.  Dec.  270;  Osgood  v.  Franklin,  2  Johns.  Ch.  (N.  Y.)  23;  7  Am.  Dec.  513. 
Cans  v.  Renshaw,  2  Pa.  St.  34;  44  Am.  Dec.  152.  Louisville,  etc.,  R.  Co.  v. 
Stone  Co.,  (Ind.  Sup.)  39  N.  E.  Rep.  703. 

"Jackson  v.  Ashton,  11  Pet.  (U.  S.)  229. 

"  Knatchbull  v.  Grueber,  3  Mer.  124. 


OF   THE    SUIT    FOB   RESCISSION    PROPER.  693 

quent  to  the  contract,  he  places  a  mortgage  on  the  premises.18  The 
purchaser  cannot  of  course  set  up  want  of  title  in  the  vendor  as  a 
defense  to  a  suit  by  the  latter  for  specific  performance,  where  by 
the  terms  of  the  contract,  the  purchaser  was  to  take  merely  such 
title  or  interest  as  the  vendor  had.19  But  specific  performance 
will  not  be  decreed  at  the  instance  of  the  vendor,  if  he  cannot  con- 
vey a  clear  title,  though  no  provision  was  made  in  the  contract  for 
a  covenant  of  warranty  to  be  inserted  in  the  deed,  unless  the  pur- 
chaser expressly  assumed  the  risk  as  to  title.20  If  the  purchaser 
defends  a  suit  for  specific  performance,  the  mere  allegation  that  the 
vendor's  title  is  defective,  will  not  suffice.  He  must  set  forth  and 
prove  the  specific  defects  of  which  he  complains.21  But,  it  is  ap- 
prehended, that  the  vendor  must  show  in  the  first  instance  a  record 
title  that  is  prima  facie  clear  and  unobjectionable,  for  by  insisting 
upon  specific  performance  he  avers  that  his  title  is  such  as  the 
purchaser  can  be  required  to  take.  In  the  nature  of  things,  how- 
ever, he  cannot  show  that  there  can  be  no  possible  objection  to  his 
title.  Reason  and  convenience  both  require  that  having  shown  a 
title  apparently  good,  the  burden  shifts  to  the  purchaser,  and  com- 
pels him  to  show  in  what  respect  the  title  is  defective  or  objection- 
able. If  the  plaintiff  cannot  convey  the  title  mentioned  in  the 
agreement,  his  bill  will  be  dismissed,  though  such  objection  be  not 
made  in  the  answer,  nor  taken  until  a  hearing  before  a  master  upon 
a  reference.22  But  it  has  been  held  that  a  purchaser  who  by  the 
exercise  of  due  diligence  might  have  discovered  an  objection  to  the 
title  and  set  up  the  same  as  a  defense  in  a  suit  for  specific  per- 
formance before  decree,  could  not,  after  decree,  avail  himself  of 
such  defect  by  additional  pleadings,  though  he  might,  if  the  vendor 
be  insolvent,  suspend  payment  of  the  purchase  money  until  the 
defect  could  be  investigated.23 

"Haber  v.  Burke,  11  S.  &  R.  (Pa.)  238. 

"Broyles  v.  Bell,  18  W.  Va.  514.  Bailey  v.  James,  11  Grat.  (Va.)  468; 
62  Am.  Dec.  659. 

w  Bates  v.  Delavan,  5  Paige  Ch.  (N.  Y.)  299.  Chambers  v.  Tulane,  9  N.  J. 
Eq.  146. 

"Glasscock  v.  Robinson,  21  Miss.  85;  Heath  v.  Newman,  11  Sm.  &  M. 
(Miss.)  201;  Harris  v.  Bolton,  7  How.  (Miss.)  167. 

"Park  v.  Johnson,  7  Allen  (Mass.)   378. 

"Denny  v.  Wickliffe,  1  Mete.  (Ky.)   216. 


694  MABZETABLE    TITLE    TO    EEAL    ESTATE. 

It  has  been  held  that  a  vendor  claiming  specific  performance  of 
the  contract,  and  resting  the  validity  of  his  title  upon  a  particular 
ground,  cannot,  after  litigation  has  begun,  shift  his  ground  and 
allege  a  valid  title  from  other  sources,  and  this  upon  the  principle 
that  a  party  giving  a  reason  for  his  conduct  and  decision  touching 
anything  involved  in  a  controversy,  cannot,  after  litigation  has 
begun,  change  his  ground  and  put  his  conduct  upon  another  and 
different  *  construction.24 

§  279.  PLACING  THE  PARTIES  IN  STATTT  QUO.  It  is  a  cardi- 
nal rule  that  in  every  proceeding  in  which  an  abrogation  or  rescis- 
sion of  a  contract  for  the  sale  of  lands  is  effected,  whether  it  be 
the  act  of  the  parties  or  the  act  of  the  law,  whether  it  be  the  result 
of  an  action  to  recover  back  the  purchase  money  paid,  or  of  an  in- 
junction to  restrain  the  collection  of  the  purchase  money,  or  of  a 
direct  suit  in  equity  for  rescission,  either  party  must  be  placed  in 
the  same  position  in  which  he  was  before  he  entered  into  the  con- 
tract. Unless  this  can  be  substantially  done,  there  can  be  no  rescis- 
sion, and  the  parties  will  be  left  to  their  remedies  at  law  upon  the 
contract.  No  rule  of  law  is  better  settled  than  that  a  purchaser  of 
a  chattel  which  proves  to  be  unsound,  cannot  keep  the  chattel  and 
refuse  to  pay  the  purchase  money,  and  that  he  cannot  detain  the 
purchase  money,  if  he  has  consumed  or  destroyed  the  chattel  so 
that  he  cannot  restore  it  to  the  vendor.  He  may,  of  course,  keep 
the  chattel  and  recover  damages  for  the  breach  of  the  express  or 
implied  warranty  of  its  soundness,  but  that  is  an  election  to  affirm 
and  not  to  rescind  the  contract.  There  is  no  difference  in  the  ap- 
plication of  these  principles  to  executory  contracts  for  the  sale  of 
lands.  Hence,  it  follows  that  a  purchaser  seeking  a  rescission  of 
the  contract  in  equity  on  the  ground  that  the  title  has  failed,  must 
restore  the  premises  to  the  vendor  before  he  will  be  absolved  from 
his  obligation  to  pay  the  purchase  money.25 

"Weinstock  v.  Levison,  26  Abb.  N.  Cas.  (N.  Y.)  244,  citing  Ohio  &  Miss. 
R.  Co.  v.  McCarthy,  96  U.  S.  258,  a  case,  however,  which  did  not  arise  be- 
tween vendor  and  purchaser.  It  may  be  doubted  whether  the  rule  thus  de- 
clared would  apply  in  a  case  in  which  the  change  of  position  by  the  vendor  did 
not  operate,  and  could  not  have  operated  to  the  injury  of  the  purchaser. 

25  1  Sugd.  Vend.  347.  Ante,  §  256.  Wickham  v.  Evered,  4  Madd.  53 ;  Tindal 
v.  Cobham,  2  Myl.  &  K.  385;  Fowler  v.  Ward,  6  Jur.  547;  Nicholson  v. 
Wordsworth,  2  Swan.  365;  Southcomb  v.  Bishop,  6  Hare,  213;  Gordan  v. 
Mahoney,  13  Ir.  Eq.  383.  Garner  v.  Leverett,  32  Ala.  410;  Duncan  v.  Jeter, 


OF   THE    SUIT    FOB    RESCISSION    PROPER.  695 

The  purchaser  will  not  be  permitted  to  rescind  the  contract  if  he 
has  made  material  alterations  in  the  property,  such  as  to  change  its 
nature  and  character,  if  they  are  of  a  kind  which  do  not  admit  of  a 
restoration  of  the  property  to  its  former  condition,  or  if  he  decline 
or  be  unable  to  restore  it  to  that  condition.26  Nor  where  he  has 
disabled  himself  from  restoring  the  possession  to  the  vendor  by 
conveying  the  premises  to  a  stranger.27  NOT  where  a  portion  of  the 

5  Ala.  604;  39  Am.  Dec.  342;  Fitzpatrick  v.  Featherstone,  3  Ala.  40.  Sea- 
burn  v.  Sutherland,  17  Ark.  603;  Wheat  v.  Dotson,  12  Ark.  698.  Lane  r. 
Latimer,  41  Ga.  171.  Underwood  v.  West,  52  111.  597;  Smith  v.  Brittenham, 
98  111.  188;  Deal  v.  Dodge,  26  111.  459;  Gehr  v.  Hogerman,  26  111.  438;  Vining 
v.  Leeman,  45  111.  246.  Marvin  v.  Applegate,  18  Ind.  425;  Osborn  v.  Dodd, 
8  Blackf.  (Ind.)  467;  Cain  v.  Guthrie,  8  Blackf.  (Ind.)  409;  Brumfield  v. 
Palmer,  7  Blackf.  (Ind.)  227.  White  v.  Hardin,  5  Dana  (Ky.),  141;  Peebles 
v.  Stephens,  3  Bibb  (Ky.),  324;  6  Am.  Dec.  660;  Wickliff  v.  Lee,  4  Dana 
(Ky.),  30.  Matta  v.  Henderson,  14  La.  Ann.  473;  Clark  v.  Briggs,  5  La. 
Ann.  624;  McDonald  v.  Vaughan,  14  La.  Ann.  716.  Shipp  v.  Whelen,  33  Miss. 
646;  Williamson  v.  Ramey,  1  Freem.  Ch.  (Miss.)  112;  Hill  v.  Samuel,  31 
Miss.  307.  Smith  v.  Busby,  15  Mo.  387 ;  57  Am.  Dec.  207.  Young  v.  Stevens, 
48  N.  H.  133;  2  Am.  Rep.  202.  Sandford  v.  Travers,  7  Bosw.  (N.  Y.)  498; 
More  v.  Smedburgh,  8  Paige  Ch.  (N.  Y.)  600;  Tompkins  v.  Hyatt,  28  N.  Y. 
347;  Goelth  v.  White,  35  Barb.  (N.  Y.)  76;  Schroeppel  v.  Hopper,  40  Barb. 
(N.  Y.)  425;  Van  Epps  v.  Harrison,  5  Hill  (N.  Y.),  63;  40  Am.  Dec.  314; 
Tallmadge  v.  Wallis,  25  Wend.  (N.  Y.)  107;  Masson  v.  Bovet,  1  Den.  (N.  Y.) 
73;  43  Am.  Dec.  651.  Nicoll  v.  Carr,  35  Pa.  St.  381;  Congregation  v.  Miles, 
4  Watts  (Pa.),  146.  Clarke  v.  Locke,  11  Humph.  (Tenn.)  300;  Officer  v. 
Murphy,  8  Yerg.  (Tenn.)  502.  Lynch  v.  Baxter,  4  Tex.  431;  51  Am.  Dec.  735. 
Hyslip  v.  French,  52  Wis.  513;  Grant  v.  Law,  29  Wis.  99;  Hendricks  v. 
Goodrich,  15  Wis.  679.  In  Perry  v.  Boyd,  126  Ala.  162;  28  So.  Rep.  711,  it 
was  held  that  the  grantee  may  maintain  his  bill  for  rescission  without  having 
restored  or  having  offered  to  restore,  the  premises  to  the  grantor.  It  seems, 
however,  that  the  property  to  which  the  title  failed  in  that  case  consisted 
principally  of  an  easement  the  right  to  excavate  a  tunnel  through  lands  of  the 
grantor.  The  bill  averred  a  willingness  to  reconvey. 

"Dart  V.  &  P.  (5th  ed.)  440.  Donovan  v.  Frisker,  Jac.  165.  In  this  case 
the  purchaser  was  required  to  reinstate  a  private  dwelling  which  he  had  con- 
verted into  a  shop.  Where  the  purchaser  retained  possession  for  a  number 
of  years,  received  the  rents,  changed  the  condition  of  the  estate,  and  made 
lasting  improvements,  it  was  held  that  he  could  not  put  the  vendor  in  statu 
quo,  and,  therefore,  could  not  rescind  the  contract.  Patten  v.  Stewart,  24 
Ind.  332. 

"McKeen  v.  Beaupland,  35  Pa.  St.  488;  Rogers  v.  Olshoffsky,  110  Pa.  St. 
147;  2  Atl.  Rep.  44.  Colyer  v.  Thompson,  2  T.  B.  Mon.  (Ky.)  16.  Where  the 
vendor  by  agreement  with  the  vendee,  conveys  portions  of  the  premises  in  lots 
to  third  persons,  as  they  are  sold  off  by  the  vendee,  he  (the  vendor)  cannot 
in  an  action  for  rescission,  the  title  being  bad,  object  that  the  entire  premises 
cannot  be  restored  to  him.  Wilcox  v.  Lattin,  93  Cal.  588 ;  29  Pac.  Rep.  226. 


696  MARKETABLE    TITLE    TO    REAL    ESTATE. 

premises  have  been  sold  under  execution  against  him.28  Nor  where 
he  has  materially  impaired  the  value  of  the  land  by  cutting  down 
the  timber.29  But  in  cases  in  which  the  purchaser  acted  in  good 
faith  and  the  injury  to  the  premises  is  capable  of  ascertainment 
and  deduction  from  the  purchase  money  he  is  seeking  to  recover 
back,  he  may  have  a  rescission  of  the  contract  though  the  property 
cannot  be  restored  in  specie.30  If  the  purchaser  be  unable  to  put 
the  vendor  in  statu  quo,  he  has  his  remedy  over  by  action  on  the 
case  if  the  vendor  was  guilty  of  fraud.31 

It  has  frequently  been  held  that  a  contract  for  the  sale  of  lands 
cannot  be  partially  rescinded,  that  it  must  be  rescinded  in  toto, 
if  at  all,32  by  which  appears  to  be  meant  that  upon  rescission 
neither  party  will  be  permitted  to  retain  anything  which  he  has 
received  by  virtue  of  the  contract.  If  the  purchaser  refuse  to 
complete  the  contract  on  the  ground  that  the  title  to  a  portion  of 
the  premises  has  failed,  and  insist  upon  retaining  possession  of  the 
other  part,  the  vendor  may  maintain  a  bill  to  compel  him  to  elect 
whether  he  will  accept  the  title,  or  abandon  the  contract  and  restore 
the  possession.38 

If  on  rescission  the  purchaser  refuse  to  restore  the  premises  the 
vendor  may  recover  them  in  ejectment.34  In  such  an  action  the 

28  Clark  v.  Briggs,  5  La.  Ann.  624. 

*  Gehr  v.  Hagerman,  26  111.  459. 

so  Wright  v.  Dickinson,  67  Mich.  580.  Calhoun  v.  Belden,  3  Bush  (Ky.), 
674,  where  the  residence  on  the  purchased  premises  had  been  destroyed  by 
fire.  In  Alabama  the  rule  that  the  purchaser  must  restore  the  premises  be- 
fore he  can  have  a  rescission  of  the  contract,  has  been  held  not  to  apply  where 
retention  of  the  property  is  necessary  for  the  indemnity  or  reimbursement  of 
the  purchaser,  as  where  the  vendor  is  insolvent  and  cannot  return  the  pur- 
chase money.  Garner  v.  Leveritt,  32  Ala.  413;  Young  v.  Harris,  2  Ala.  108; 
Elliott  v.  Boaz,  9  Ala.  772;  Greenlee  v.  Gaines,  13  Ala.  198;  47  Am.  Dec.  49; 
Parks  v.  Brooks,  16  Ala.  529;  Read  v.  Walker,  18  Ala.  323;  Foster  v.  Gres- 
sett,  29  Ala.  393;  Gallagher  v.  Witherington,  29  Ala.  420;  Duncan  v.  Jeter, 
5  Ala.  604;  39  Am.  Dec.  342. 

"Htfgan  v.  Weyer,  5  Hill   (N.  Y.),  389. 

"2  Kent  Com.  408;  2  Warvelle  Vend.  878.  Cases  cited  supra,  this  sec- 
tion. Benjamin  v.  Hobbs,  31  Ark.  151.  Lovingston  v.  Short,  77  111.  587. 
Porter  v.  Titcomb,  22  Me.  300.  Hogan  v.  Weyer,  5  Hill  (N.  Y.),  389. 

3$Davison  v.  Perrine,  22  N.  J.  Eq.  87. 

"I  Sugd.  Vend.  (8th  Am.  ed.)  276  (179).  Nicoll  v.  Carr,  31  Pa.  St.  381. 
Fbwler  v.  Cravens,  3  J.  J.  M.  (Ky.)  3;  20  Am.  Dec.  153. 


OF   THE    SUIT    FOE   RESCISSION    PROPER.  69? 

purchaser  cannot  set  up  paramount  title  in  the  third  person  as  a 
defense.36  The  purchaser  is  estopped  to  deny  the  title  of  his  vendor. 
Even  where  he  buys  in  an  adverse  claim  to  the  premises,  he 
must  surrender  possession  before  he  can  claim  rescission  against 
his  vendor.  He  must  take  his  chances  of  recovering  the  land  on 
the  title  thus  acquired.36  If,  however,  he  purchases  in  ignorance 
of  the  fact  that  the  paramount  title  already  exists  in  himself  he 
cannot  be  required  to  surrender  the  possession  before  asserting  his 
better  title.37 

The  rule  which  requires  the  restoration  of  the  parties  to  their 
former  condition  is  satisfied  by  substantial  compliance  therewith, 
since  it  is  obviously  impossible  for  the  parties  to  be  placed  in  the 
precise  condition  in  which  they  were  before  the  contract  was 
entered  into.  Accordingly,  it  is  generally  considered  that  the  rule 
is  satisfied  by  restoring  the  premises  unimpaired,  together  with  the 
rents  and  profits,  to  the  vendor,  and  the  purchase  money,  with  in- 
terest, costs  and  expenses  for  improvement,  to  the  purchaser.38  In 
some  cases  it  has  been  held  that  the  restoration  of  the  premises  to 
the  vendor  on  failure  of  the  title  is  a  condition  precedent  to  the 
right  to  maintain  a  suit  for  rescission.39  It  may  be  doubted  whether 
such  a  rule  would  apply  where  the  court  has  power  to  enter  a  judg- 

"  Fowler  v.  Cravens,  3  J.  J.  M.   (Ky.)    3;  20  Am.  Dec.  153. 

'•Grundy  v.  Jackson,  1  Litt.  (Ky.)  11.  Officer  v.  Murphy,  8  Yerg.  (Tenn.) 
502.  Ante,  p.  482. 

n  Southcomb  v.  Bishop,  6  Hare,  213. 

"Masson  v.  Bovet,  1  Den.  (N.  Y.)  74;  43  Am.  Dec.  651.  Bank  v.  Ettinge, 
40  N.  Y.  391.  In  this  case  it  was  held  that  the  vendor  could  not  require  the 
purchaser  to  indemnify  him  for  expenditures  which  he  had  made  upon  the 
expectation  of  receiving  money  under  the  contract.  As  to  the  contention  that 
each  party  must  be  restored  to  the  precise  condition  in  which  he  was  before 
the  contract  was  made,  the  court  said :  "  The  application  of  this  principle  to 
the  present  case  would  substantially  destroy  the  rule  that  money  paid  under 
a  mistake  of  fact  may  be  recovered  back.  If  the  facts  could  be  so  arranged 
that  there  should  be  no  loss  to  either  party  there  would  be  nothing  to  contend 
about,  and  so  no  such  actions  would  be  brought.  *  *  *  It  is  an  ordinary 
result  of  the  transaction  that  the  party  receiving  has  incurred  liabilities  or 
paid  money  which  he  would  not  have  done  except  for  the  receipt  of  the 
money." 

*•  Ante,  §  258.  Eames  v.  Der  Germania  Turn  Verein,  8  111.  App.  663,  citing 
Hunt  v.  Silk,  5  East,  449,  and  Norton  v.  Young,  3  Greenl.  (Me.)  30. 


698  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

ment  or  decree  conditioned  to  be  inoperative  unless  the  premises  be 
restored  to  the  vendor.40 

The  cases  in  which  the  purchaser  may  have  a  rescission  of  the 
contract  without  restoring  the  premises  to  the  vendor  have  been 
elsewhere  considered  in  this  work/1  The  court,  in  decreeing  a 
rescission  of  the  contract  on  the  ground  of  failure  of  title,  will 
direct  outstanding  purchase-money  notes  to  be  delivered  up  and 
canceled,  and  will  also  direct  that  any  bond  for  title  or  other  ob- 
ligation to  convey  executed  by  the  vendor,  be  surrendered  by  the 
purchaser  and  canceled.42 

§  280.  INTEREST.  BENTS  AND  PROFITS.  IMPROVEMENTS. 
On  recission  of  an  executory  contract  for  the  sale  of  lands  for  want 
of  title  in  the  vendor,  whether  by  suit  in  equity  or  action  at  law  to 
recover  back  the  purchase  money,  the  purchaser,  if  he  has  never 
been  in  possession,  will  be  entitled  to  interest  on  the  purchase 
money  he  has  paid.43  If  he  has  been  in  possession  the  general  rule 
is  that  the  vendor  may  set  off  the  rents  and  profits  against  interest 
on  the  purchase  money,44  taking  into  consideration,  of  course,  any 

*°  In  Pennsylvania  a  condition  requiring  the  purchaser  to  reconvey  the 
premises  to  the  vendor  may  be  inserted  in  the  verdict.  Babcock  v.  Case,  61 
Pa.  St.  427. 

"Ante,  §  261. 

4J  McKay  v.  Carrington,  1  McLean  (U.  S.),  50.  In  Williams  v.  Carter,  3 
Dana  (Ky. ),  198,  the  purchase-money  notes  could  not  be  delivered  up  because 
they  had  been  destroyed  by  the  vendor,  and  a  decree  was  entered  rescinding 
the  contract.  McGee  v.  Carrico,  6  Litt.  (Ky.)  393. 

"2  Warvelle  Vend.  885. 

44 2  Warvelle  Vend.  885.  Watts  v.  Waddle,  6  Pet.  (U.  S.)  389.  Mclndoe 
v.  Monnan,  26  Wis.  588;  7  Am.  Rep.  96.  White  v.  Tucker,  52  Miss.  145. 
Axtel  v.  Chase,  77  Ind.  74.  Baston  v.  Clifford,  68  111.  67;  Bitzer  v.  Orban, 
88  111.  130.  McManus  v.  Cook,  59  Ga.  485.  Todd  v.  McLaughlin,  125  Mich. 
268;  84  N.  W.  Rep.  146.  Griffith  v.  Depew,  3  A.  K.  Marsh.  (Ky.)  177;  13 
Am.  Dec.  141,  where  held  that  interest  should  run  only  from  date  of  suit  for 
rescission,  and  that  rents  and  profits  should  be  charged  against  the  purchaser 
from  the  same  period.  Morton  v.  Ridgway,  3  J.  J.  Marsh.  (Ky.)  258;  Wick- 
liff  v.  Clay,  1  Dana  (Ky.),  535;  Taylor  v.  Porter,  1  Dana  (Ky.),  421;  25  Am. 
Dec.  155;  Williams  v.  Rogers,  2  Dana  (Ky.),  374.  Buchanan  v.  Lorman,  3 
Gill  (Md.),  51.  Outlaw  v.  Morris,  7  Humph.  (Tenn.)  262.  Patrick  v. 
Roach,  21  Tex.  261;  27  Tex.  579;  Littlefield  v.  Tinsley,  26  Tex.  353,  359;  Ten- 
nell  v.  Dewitt,  20  Tex.  256;  F?tzhugh  v.  Land  Company,  81  Tex.  306;  16  S.  W. 
Rep.  1078.  In  Tennell  v.  Roberts,  2  J.  J.  Marsh.  (Ky.)  577,  a  court  of  equity 
on  rescinding  a  contract  for  the  sale  of  lands  refused  to  decree  in  favor  of  the 
vendor  for  rents  and  profits  on  the  ground  that  he  had  been  guilty  of  fraud 


OF   THE    SUIT   FOE   RESCISSION    PEOPEB.  699 

material  inequality  between  the  two  items.43  Even  where  the 
vendor  fraudulently  concealed  a  defect  in  his  title  he  has  been  al- 
lowed the  value  of  the  rents  and  profits  enjoyed  by  the  purchaser.46 
But  it  has  been  held  that  he  will  not  be  entitled  to  an  account  of  the 
rents  and  profits  where  by  his  fraudulent  conduct  the  purchaser 
has  been  induced  to  remain  in  possession  a  long  time  in  expectation 
that  a  good  title  will  be  made.47  Nor  where  the  purchaser,  not  yet 
having  surrendered  possession  of  the  premises,  will  probably  be 
compelled  to  account  to  the  true  owner  for  the  mesne  profits,  or  is 
entitled  to  retain  them  as  a  security  for  the  return  of  the  purchase 
money  paid  by  him.48  In  England  it  is  said  to  be  usual  and  proper 
to  specify  in  every  case  the  day  on  which  the  purchase  is  to  com- 
pleted, when  the  purchaser  is  to  have  possession,  and  when  he  is  to 
receive  the  rents  and  profits  and  pay  interest  on  the  purchase 
money.49  The  purchaser  cannot,  however,  in  equity  avail  himself 

respecting  the  title,  and  further,  that  the  real  owner  was  proceeding  in  eject- 
ment against  the  purchaser.  As  to  the  right  of  the  vendor  to  set-off  the 
rents  and  profits  against  the  purchaser's  claim  for  damages,  see  Ante,  §  95. 

48  2  Warv.  Vend.  885.  Doggett  v.  Emerson,  1  Woodb.  &  M.  (U.  S.)  195, 
204.  Shields  v.  Bogliolo,  7  Mo.  134,  where  it  was  said  that  if  the  land  were 
wild  and  wholly  unproductive  the  rule  that  the  use  of  the  money  and  the  use 
of  the  land  are  equivalent  would  not  apply.  A  head  note  to  the  case  of 
Williams  v.  Wilson,  4  Dana  (Ky.),  507,  fairly  digests  the  opinion  of  the 
court  as  follows :  "  There  never  has  been  any  universal  rule  for  adjusting  and 
setting  off  rents  against  interest  upon  the  rescission  of  a  sale  of  land.  As 
cases  vary,  the  equity  of  allowing  rents  and  interest  on  the  purchase  money 
must  vary  —  the  object  being  in  every  case  to  place  the  parties  as  nearly  as 
possible  in  statu  quo."  In  the  absence  of  evidence  to  the  contrary,  the  use  of 
the  premises  and  interest  on  the  purchase  money  will  be  held  to  balance  each 
other.  Talbot  v.  Sebree,  1  Dana  (Ky.),  56. 

"Bryant  v.  Booth,  30  Ala.  311;  68  Am.  Dec.  117,  which,  however,  was  a 
case  in  which  the  contract  had  been  executed.  Richardson  v.  McKinson,  Litt. 
Sel.  Cas.  (Ky.)  320;  12  Am.  Dec.  308;  Peebles  v.  Stephens,  3  Bibb.  (Ky.), 
324 ;  6  Am.  Dec.  660.  The  same  rule  has  been  applied  where  the  contract 
was  rescinded  on  the  ground  that  the  vendor  had  fraudulently  represented  the 
quality  of  the  land.  Thompson  v.  Lee,  31  Ala.  292.  In  Walker  v.  Ogden,  1 
Dana  (Ky. ),  247,  the  purchaser  had  bought  in  a  paramount  title  to  the 
premises,  and  a  bill  by  the  vendors  for  an  account  of  the  rents  and  profits 
was  dismissed  on  the  ground  that  the  question  of  title  being  undetermined 
the  remedy  of  the  plaintiff  was  at  law  by  action  of  ejectment. 

4TSeamore  v.  Harlan,  3  Dana    (Ky.),  410. 

"McLaren  v.  Irvin,  63  Ga.  275. 

"Dart  V.  &  P.   (5th  ed.)   127. 


700  MARKETABLE    TITLE    TO    REAL    ESTATE. 

of  a  breach  of  these  conditions  unless  time  be  of  the  essence  of  the 
contract.60 

It  is  not  necessary  that  a  purchaser,  seeking  a  decree  rescind- 
ing the  contract  when  the  title  has  failed,  shall  have  previously 
tendered  the  reasonable  value  of  the  use  and  occupation  of  the 
premises;  the  vendor's  demand  in  that  respect  can  be  adjusted  in 
the  action.61  If  the  contract  be  rescinded  at  the  suit  of  the  pur- 
chaser, for  want  of  title  in  the  vendor,  and  no  provison  be  made  for 
redelivery  of  the  land  to  the  vendor,  he,  or  his  heirs,  may  maintain 
a  bill  against  the  purchaser  for  an  account  of  the  rents  and  profits.62 
If  the  purchaser  committed  waste  while  in  the  occupation  of  the 
premises,  the  damages  thence  accruing  may  be  set  off  against  his 
claim  for  purchase  money,  interest  and  improvements.53  But  he 
cannot  be  charged  with  ordinary  deterioration  or  wear  and  tear  of 
the  premises.54  We  have  seen  that  if  the  purchaser  elect  to  keep 
the  premises  notwithstanding  the  defective  title,  and  to  maintain 
an  action  to  recover  damages  for  breach  of  the  contract  to  make  a 
good  title,  thereby  affirming  the  contract,  he  will  not  be  accountable 
to  the  vendor  for  the  mesne  profits.65 

"Id.  417. 

"Dotson  v.  Bailey,  76  Ind.  434. 

"Officer  v.  Murphy,  8  Yerg.  (Tenn.)  502.  In  this  case  the  purchaser, 
after  obtaining  a  decree  rescinding  the  contract,  and  enjoining  the  collection 
of  the  purchase  money,  remained  in  possession  a  number  of  years. 

M  Wickliffe  v.  Clay,  1  Dana  (Ky.),  585,  where  the  purchaser  removed  a 
building  from  the  premises.  This  building  was  an  improvement  made  by  the 
vendor,  for  which  he  would  have  been  entitled  to  recover  against  the  real 
owner.  Buchanan  v.  Lorman,  3  Gill  (Md.),  51.  Bitzer  v.  Orban,  88  111.  130. 

"Williams  v.  Rogers,  2  Dana  (Ky.),  374.  Buchanan  v.  Lorman,  3  Gill 
(Md.),  51. 

"Ante,  §  95.  Greene  v.  Allen,  32  Ala.  221,  where  it  was  said:  "We  have 
some  decisions  which  hold  that  where  a  purchaser  proceeds  in  equity  for  a 
rescission  of  a  contract  for  a  sale  of  land  on  account  of  defective  title,  he 
must  account  for  rents  and  profits  if  any  have  accrued  to  him.  See,  Walton 
v.  Bonham,  24  Ala.  513;  Young  v.  Harris,  2  Ala.  108,  114;  Williams  v. 
Mitchell,  30  Ala.  299.  But  we  know  of  no  case  in  which  this  doctrine  has 
been  applied  to  a  suit  at  law  on  a  bond  for  title  where  the  breach  alleged  is 
the  failure  of  the  vendor's  title.  If  a  vendor  in  such  a  case  could  recoup, 
his  vendee  might  be  liable  to  a  double  recovery;  first,  to  his  vendor,  and, 
secondly,  to  the  true  owner  of  the  land.  Moreover,  such  recoupment  might 
operate  direct  pecuniary  benefit  to  a  fraudulent  vendor,  who  would  thus 
speculate  on  his  own  tortious  acts." 


OF   THE    SUIT    FOR    RESCISSION    PROPER.  701 

It  lias  been  held  that  the  purchaser  can  only  be  charged  with  the 
profits  actually  received,  and  that  the  question  how  much  the 
premises  would  have  been  worth  to  a  man  of  ordinary  industry 
and  diligence  is  irrelevant  and  immaterial.66  But  this  rule,  it  is 
apprehended,  will  not  relieve  the  purchaser  from  his  liability  to 
pay  a  fair  rent  for  the  premises  where  he  has  derived  benefits  from 
the  possession.67  And  in  some  cases  the  right  of  the  vendor  to  an 
allowance  for  rents  and  profits  on  rescission  of  the  contract  has 
been  denied  altogether  on  the  ground  that  the  liability,  if  any, 
is  for  use  and  occupation;  that  an  action  for  use  and  occupation 
cannot  be  supported,  unless  there  was  an  implied  contract  to  pay 
rent,  and  that  no  such  contract  on  the  part  of  the  purchaser  can  be 
implied  from  his  mere  occupancy  of  the  premises.58  The  vendor 
may  always  provide  in  the  contract  that  in  case  of  an  inability  to 
make  title  the  purchaser  shall  pay  a  rent  for  the  property.59 

We  have  seen  that  at  law  a  purchaser  makes  improvements  on 
the  premises  at  his  own  risk.60  But  in  equity,  as  a  general  rule, 
wherever  the  vendor  would  receive  the  benefit  of  permanent  im- 
provements made  by  the  purchaser  he  must  account  for  them  either 
by  paying  the  value  of  them  to  the  purchaser,  or  by  allowing  them 

M  Richardson  v.  McKinson,  Litt.  Sel.  Cas.  (Ky.)  320;  12  Am.  Dec.  308, 
reversing  the  judgment  below.  The  court  said:  "An  estate  may  be  made 
more  or  less  productive,  according  to  the  skill  and  care  with  which  it  may 
be  managed;  but  the  possessor  cannot  be  said  to  be  enriched  in  any  case 
beyond  the  actual  profits  he  has  received;  and  a  purchaser,  in  a  case  of  this 
sort,  ought  not  to  be  responsible  for  more.  It  has  accordingly  been  held, 
where  a  purchaser  has  been  let  into  possession  and  the  purchase  cannot  be 
completed  on  account  of  defects  in  the  title,  that  he  is  not  bound  to  pay 
rents  beyond  the  actual  profits  he  has  made.  Sugden,  10." 

"  In  Murray  v.  Palmer,  2  Sch.  &  Lef.  474,  489,  on  rescission  of  an  executory 
contract  on  the  ground  of  fraud  in  the  purchaser  in  procuring  a  convey- 
ance from  a  woman  who  was  ignorant  of  her  rights,  the  purchaser  was  held 
liable  for  rent  which,  but  for  his  willful  default,  he  might  have  received  from 
the  premises. 

M  Ankeny  v.  Clark,  148  U.  S.  345.  No  question  as  to  interest  seems  to  have 
been  raised  in  this  case.  Bardsley's  Appeal,  10  Atl.  Rep.  39.  In  Kirkpatrick 
v.  Downing,  58  Mo.  32;  17  Am.  Rep.  678,  it  was  held  that  the  purchaser 
could  not  be  held  liable  as  a  tenant  for  rent,  eo  nomine,  but  that  he  was 
chargeable  to  the  extent  of  the  benefit  actually  derived  from  the  use  of  the 
land. 

MAa  was  done  in  Andrews  v.  Babcock  (Conn.),  26  Atl.  Rep.  715. 

••Ante,  §  96. 


702  MAEKETABLE    TITLE    TO    REAL    ESTATE. 

as  a  set-off  against  any  demands  which  he  may  have  against  the 
purchaser.61  But  even  in  equity  the  purchaser  will  not  be  entitled 
to  an  allowance  for  his  improvements  if  they  were  made  when  he 
knew  there  was  a  defect  in  the  title.62  Nor  where  he  participates 

W2  Sugd.  (8th  Am.  ed.)  514  (747);  2  Story  Eq.  Jur.  1234.  King  v. 
Thompson,  9  Pet.  (U.  S.)  204.  Kirkpatrick  v.  Downing,  58  Mo.  32;  17  Am. 
Rep.  678.  Martin  v.  Anderson,  7  Ga.  228.  Peebles  v.  Stephens,  3  Bibb  (Ky.), 
324;  6  Am.  Dec.  660;  Ewing  v.  Handley,  4  Litt.  (Ky.)  346,  371;  14  Am.  Dec. 
140;  Richardson  v.  McKinson,  Litt.  Sel.  Cas.  (Ky.)  320;  12  Am.  Dec.  308; 
Griffith  v.  Depew,  3  A.  K.  Marsh.  (Ky.)  177;  13  Am.  Dec.  141;  Morton  v. 
Ridgway,  3  J.  J.  Marsh.  (Ky.)  258.  Strike's  Case,  1  Bland  Ch.  (Md.)  57, 
77.  Lancoure  v.  Dupre  (Minn.),  55  N.  W.  Rep.  129,  which  was  a  case  in 
which  the  purchaser  rescinded  the  contract  and  abandoned  the  premises. 
Gibert  v.  Peter,  38  N.  Y.  165;  92  Am.  Dec.  785,  where  held,  also,  that  the 
purchaser's  claim  for  improvements  will  be  a  lien  on  the  premises  until  paid. 
Perkins  v.  Hadley,  4  Hayw.  (Tenn.)  148;  Smithson  v.  Inman,  2  Baxt. 
(Tenn.)  88.  Patrick  v.  Roach,  21  Tex.  251;  27  Tex.  579.  Erwin  v.  Myers, 
46  Pa.  St.  96.  See,  contra,  Wilhelm  v.  Fimple,  31  Iowa,  131;  7  Am.  Rep.  117. 
The  extraordinary  statement  is  made  in  this  case  that  a  purchaser  is  not 
entiteld  to  an  allowance  for  his  improvements  where  he  sues  to  rescind  the 
contract,  but  that  he  would  be  if  he  sued  to  recover  damages  for  breach  of 
the  contract.  If  this  be  true,  the  purchaser  electing  to  affirm  the  contract, 
may  recover  damages  for  the  breach,  including  the  value  of  his  improvements, 
retain  possession  of  the  land,  and  by  getting  in  the  rights  of  the  adverse 
claimant,  practically  receive  compensation  for  his  improvements  without  hav- 
ing incurred  a  loss  on  their  account.  On  the  other  hand,  if  elected  torescind 
the  contract,  he  could  have  nothing  for  his  improvements;  their  entire  benefit 
would  pass  to  the  vendor  upon  a  return  of  the  premises  to  him;  or  he  (the 
vendor)  would  be  allowed  their  value  when  sued  in  ejectment  by  the  adverse 
claimant.  These  results  necessarily  follow  from  the  rule  that  upon  rescission 
of  the  contract  the  premises  must  be  restored  to  the  vendor,  and  that  upon 
affirmance  of  the  contract  by  action  for  damages  the  purchaser  is  not  obliged 
to  surrender  the  possession.  The  only  case  cited  to  sustain  the  foregoing 
decision  was  that  of  Gillett  v.  Maynard,  5  Johns.  (Jf.  Y.)  85;  4  Am.  Dec. 
329,  which  was  a  suit  to  recover  back  the  purchase  money  and  value  of  im- 
provements, the  contract  being  void  because  not  in  writing,  and  the  vendor 
having  refused  to  perform.  See,  contra,  the  latter  case,  Mason  v.  Swan,  6 
Heisk.  (Tenn.)  450;  Rhea  v.  Allison,  3  Head  (Tenn.),  176. 

«2  Sugd.  Vend.  (8th  Am.  ed.)  515.  Scott  v.  Battle,  85  N.  C.  184;  39  Am. 
Rep.  694.  But  see  Ewing  v.  Handley,  4  Litt.  (Ky.)  371;  14  Am.  Dec.  140, 
where  the  purchaser  was  permitted  to  set  off  improvements  against  rent, 
-though  made  when  he  knew  the  title  was  defective.  But  he  was  denied  an 
allowance  for  improvements  made  after  he  had  recovered  judgment  against 
the  vendor  in  an  action  for  breach  of  the  contract.  In  Witherspoon  v. 
McCalla,  3  Des.  (S.  C.)  245,  the  rule  stated  in  the  text  seems  to  have  been 
restricted  to  cases  in  which  the  defect  was  notorious,  and  the  purchaser,  buy- 
ing on  a  speculation,  had  been,  on  account  of  the  defect,  able  to  get  the 
property  much  below  its  real  value. 


OF   THE    SUIT    FOK   EESCISSION    PROPER.  703 

in  a  fraudulent  intent  of  the  vendor  in  selling  the  property.'8  The 
vendor  will  of  course  be  entitled  to  set  off  against  the  improve- 
ments, the  fair  rental  value  of  the  land,64  without  the  improve- 
ments.65 If  the  purchaser  has  had  the  use  and  benefit  of  the  im- 
provements which  he  has  made,  he  will  be  entitled  only  to  their 
present  value,  and  not  their  value  at  the  time  they  were  made.**  It 
has  been  held  that  if  the  purchaser  recover  the  value  of  his  improve- 
ments against  an  adverse  claimant,  he  must  refund  the  amount 
so  recovered  if  the  vendor  afterwards  establishes  his  title.*7 

The  right  of  the  purchaser  to  a  decree  for  interest  on  the  pur- 
chase money  paid  by  him  and  for  the  value  of  his  improvements, 
and  the  right  of  the  vendor  to  an  account  of  the  rents  and  profits, 
and  an  allowance  for  waste  beyond  ordinary  wear  and  tear,  ob- 
viously depend  in  a  great  measure  upon  the  circumstances  of  each 
particular  case,  and  cannot  be  made  the  subjects  of  unbending 
rules.  A  court  of  equity  will  be  chiefly  concerned  to  see  that  each 
party  is  placed  as  nearly  as  possible  in  statu  quo,  without  regard 
to  arbitrary  restrictions.*8 

§  281.  PLEADING.  In  some  cases  it  has  been  held  that  it  is 
incumbent  on  the  purchaser  seeking  to  rescind  an  executory  con- 
tract for  the  sale  of  lands,  to  aver  and  prove  facts  showing  that  the 
title  is  bad,  and  that  he  cannot  require  the  vendor  to  show  title.69  It 
is  true  that  the  vendor  may  be  in  possession  of  many  facts  respect- 
ing the  title  which  it  would  be  exceedingly  difficult  for  the  pur- 
chaser to  ascertain,  such  as  the  happening  of  contigencies,  on  which 
the  validity  of  the  title  depends,  e.  g.,  the  death  of  life  tenants,  or 
the  births  of  persons  in  remainder,  and  other  facts  of  like  kind 
which  cannot  be  discovered  by  examining  the  public  records ;  and 
cases  might  occur  in  which  the  purchaser  would  be  involved  in 

"Strike's  Case,  1  Bland   (Md.),  57. 

M  Cases  cited  supra  throughout  this  section.  Winters  v.  Elliott,  1  Lea 
(Tenn.),  676;  Mason  v.  Lawing,  10  Lea  (Tenn.),  264. 

"Lancoure  v.  Dupre   (Minn.),  55  N.  W.  Rep.  129. 

"Williams  v.  Rogers,  2   Dana    (Ky.),   374;    Seamore   v.  Earlan,  3  Dana  ( 
(Ky.),  411. 

"Morton  v.  Ridgway,  3  J.  J.  Marsh.    (Ky.)    258. 

*  Littlefield  v.  Tinsley,  26  Tex.  353,  358. 

"See  ante,  §  117,  as  to  burden  of  proof  in  actions  for  breach  of  covenant 
of  seisin.  2  Rob.  Pr.  190.  Riddell  v.  Blake,  4  Cal.  264;  Thayer  v.  White,  3 
Cal.  228.  Moss  v.  Davidson,  1  Sm.  &  M.  (Miss.)  112.  Grantland  v.  Wight, 
5  Munf.  (Va.)  295.  In  both  these  cases  the  contract  had  been  executed. 


704  MARKETABLE    TITLE    TO    RF-AT.    ESTATE. 

great  hardship,  if  required  to  prove  facts  lying  peculiarly  within 
the  knowledge  of  the  vendor.  At  the  same  time  it  is  clear  that  it 
would  be  inequitable  to  permit  the  purchaser,  when  tired  of  his 
bargain,  to  come  into  a  court  of  equity,  and  upon  the  bare  allega- 
tion that  the  title  is  bad,  put  the  vendor  to  the  vexation  and  ex- 
pense-of  proving  it  to  be  sufficient.  He  should  at  least,  be  required 
to  point  out  the  defect  of  which  he  complains,  and  to  prove  it  as 
alleged.  But  there  are  cases  which  decide  that  if  the  vendor  sues 
for  specific  performance,  as  a  general  rule  the  burden  will  be  upon 
him  to  show  that  he  has  such  a  title  as  the  purchaser  can  be  re- 
quired to  take.70 

If  the  vendor  sue  for  specific  performance,  it  is  not  necessary 
that  the  purchaser's  objections  to  the  title  be  taken  in  his  answer; 
they  may  be  made  at  any  time  before  the  hearing.71 

§  282.  PABTLES.  All  parties  in  interest  must,  of  course,  be 
made  parties  to  the  suit  for  rescission.72  An  assignee  of  one  of  the 
purchase-money  notes  has  been  held  a  necessary  party.78  So,  also, 
one  who  had  purchased  from  the  complainant.74  If  the  purchaser 
should  die  pending  the  suit,  his  heirs  must  be  made  parties.  By  a 
rescission  their  interests  would  be  directly  affected,  and  to  author- 
ize a  decree  it  is  indispensable  that  they  should  be  before  the 
court.75 

"Griffin  v.  Cunningham,  19  Grat.  (Va.)  571;  Grantland  v.  Wight,  5  Munf. 
(Va.)  295.  Walsh  v.  Barton,  24  Ohio  St.  28.  Jarman  v.  Davis,  4  T.  B.  Mon. 
(Ky.)  115.  Daily  v.  Litchfield,  10  Mich.  38;  Dwight  v.  Cutler,  3  Mich.  566; 
64  Am.  Dec,  105.  Cornell  T.  Andrus,  36  N.  J.  Eq.  321.  See  ante,  §  244.  It 
is  suggested  with  diffidence,  that  the  sufficiency  of  the  title  of  the  vendor 
often  depends  upon  one  or  more  questions  of  fact  alleged  upon  the  one  side 
and  denied  upon  the  other,  and  that  whenever  the  pleadings  have  reached  this 
stage  in  any  suit  or  proceeding  in  which  the  sufficiency  of  the  title  ia  involved, 
it  would  seem  that  the  burden  of  proof  should  be  devolved  upon  him  who  has 
the  affirmative  of  the  issue,  whether  vendor  or  purchaser,  unless  the  fact  is 
of  a  kind  lying  peculiarly  within  the  knowlegde  of  the  party  having  the  nega- 
tive. The  parties  should  so  plead  that  it  may  be  determined  whether  the 
title  depends  upon  a  question  of  law  or  a  question  of  fact;  so  that,  in  the 
latter  event,  they  may  arrive  at  an  issue,  and  the  burden  of  proof  be  intelli- 
,  gently  and  not  arbitrarily  disposed. 

"Park  v.  Johnson,  7  Allen  (Mass.),  378.  In  Harding  v.  Olsen,  177  111. 
298 ;  52  N.  E.  Rep.  482,  it  was  said  that  the  only  necessary  party  to  the  bill 
is  the  party  against  whom  the  decree  for  repayment  will  operate. 

"Cummins  v.  Boyle,  1  J.  J.  Marsh.  (Ky.)   480. 

"Pollock  v.  Wilson,  3  Dana    (Ky.).   25. 

"Yoder  T.  Swearingen,  6  J.  J.  Marsh.   (Ky.)   518. 

"Huston  v.  Noble,  4  J.  J.  Marsh.   (Ky.)   130. 


CHAPTER  XXXI. 

OF  DOUBTFUL  TITLES. 

GENERAL  RULES.     §  283. 

CLASSIFICATION  OF  CASES   OF  DOUBTFUL  TITLES.     §   284. 

CASES    IN    WHICH    THE    TITLE    WILL    BE    HELD    FREE    FROM 

DOUBT.     §  285. 

DOUBTFUL  TITLES  AT  LAW.     §  286. 

INCONCLUSIVENESS  OF  JUDGMENT  OR  DECREE.     §  287. 
SPECIAL  AGREEMENTS  AS  TO  THE  TITLE.     §  288. 
PAROL  EVIDENCE  TO  REMOVE  DOUBTS.     §  289. 
EQUITABLE  TITLE.      ADVERSE   CLAIMS.     §  290. 
DEFEASIBLE  ESTATES.     §  291. 

TITLE  AS  DEPENDENT  UPON  ADVERSE  POSSESSION.      §  292. 
PRESUMPTIONS  FROM  LAPSE  OF  TIME.     §  293. 
TITLE  AS  AFFECTED  BY  NOTICE.     §  294. 
BURDEN  OF  PROOF.     §  295. 
ILLUSTRATIONS  OF  THE  FOREGOING  PRINCIPLES.     §  296. 

Errors  and  irregularities  in  judicial  proceedings.     §  297. 

Sale  of  the  estates  of  persons  under  disabilities.     §  298. 

Want  of  parties  to  suits.     §  299. 

Defective  conveyances  and    acknowledgments.   Imperfect  registra- 
tion.    §  300. 

Construction  of  deeds  and  wills.    §  301. 

Competency   of  parties  to  deeds.     §  302. 

Title  as  dependent  upon  intestacy.     Debts  of  decedent.     §  303. 
INCUMBRANCES.     §  304. 

Admitted  incumbrances.     §  305. 

Incumbrances  which  make  the  title  doubtful.     §    306. 

Apparently  unsatisfied  incumbrances.    §  307. 
ENCROACHMENTS  AND   DEFICIENCIES    §§  307a,  307b. 

§  283.  GENERAL  RULES.  Unless  the  contract  contains  a  stip- 
ulation to  the  contrary,  there  is  always  an  implied  agreement  that 
the  title  offered  by  the  vendor  shall  be  marketable.1  A  purchaser 
of  lands  can  never  be  required  to  accept  a  doubtful  or  unmarketable 
title,2  even  though  the  fullest  indemnity  be  offered  by  way  of  a 

1  Scudder  v.  Watt,  90  N.  Y.  Supp.  605 ;  98  App.  Div.  40.  But  there  is  no 
implied  agreement  that  the  title  shall  be  satisfactory  to  the  purchaser  or 
his  attorney.  Green  v.  Ditsch,  143  Mo.  1 ;  44  S.  W.  Rep.  749. 

'Dart.  Vend.  734;  Sugd.  Vend.  (8th  Am.  ed.)  577  (386)  ;  2  Warvelle  Vend. 
843;  Adams  Eq.,  m.  p.  84;  Story's  Eq.  Jur.  693;  Pomeroy's  Eq.  Jur.  §  1405. 
Beach  Mod.  Eq.  Jur.,  §  607;  Bispham  Eq.  Jur.,  §  378;  Atkinson  Marketable 
Title,  ch.  1. 

45 


706  MARKETABLE    TITLE    TO    REAL    ESTATE. 

general  warranty  from  a  solvent  vendor.3  Specific  performance  is 
a  matter  of  grace  and  not  of  right,  and  will  never  be  decreed  when 
the  title  is  open  to  reasonable  doubt.4  All  titles  absolutely  bad  are, 
of  course,  unmarketable,  but  the  expression  "  marketable  title  " 
as  originally  employed  by  courts  of  equity,  was  not  the  equivalent 
of  "  good  title  "  or  "  perfect  title,"  nor  the  opposite  of  "  bad  title  " 
or  "  defective  title,"  but  was  technical  in  its  character,  and  meant 
a  title  concerning  which  there  were  no  fair  and  reasonable  doubts ; 
such  a  title  as  a  court  of  equity  would  compel  a  purchaser  to  ac- 
cept on  a  bill  by  the  vendor  for  specific  performance.5  It  is  pos- 
sible that  a  perfect  title  may  be  unmarketable;6  for  example, 
suppose  the  validity  of  A's  title  depends  upon  the  question  whether 
or  not  he  is  the  next  of  kin  to  B.  If  he  is  indeed  the  next  of  kin 
his  title  is  perfect.  But  if  it  cannot  appear  to  the  court  beyond 
a  reasonable  doubt  that  he  is  such,  then  the  title,  though  really 
good  if  all  the  facts  could  be  known,  will  be  deemed  unmarketable.7 
This  doctrine  of  "  marketable  titles "  was  originally  cognizable 
only  in  the  courts  of  equity,  but  in  several  of  the  American  States 
in  which  the  distinction  between  legal  and  equitable  procedure  has 
been  abolished,  the  same  doctrine  has  been  applied  in  courts  of 
law,  e.  g.,  in  actions  to  recover  back  the  purchase  money.  To  this 
fact  is  probably  due  the  tendency  of  the  courts  in  those  States  to 
apply  the  term  "  unmarketable  "  to  such  titles  as  are  absolutely 
bad,  as  well  as  those  which  are  merely  doubtful. 

•Batchelder  v.  Macon,  67  N.  C.  181. 

4  Mitchell  v.  Stinemetz,  97  Pa.  St.  253.  Maltby  v.  Thews,  171  HI.  264;  49 
N.  E.  Rep.  486;  Wesley  v.  Eells,  177  U.  S.  370;  Dyker  M.  L.  &  I.  Co.  v. 
Cook,  159  N.  Y.  6 ;  53  N.  E.  Rep.  690. 

8  Adams  Eq.,  m.  p.  84;  Beach  Mod.  Eq.  Jur.  §  606.  Stapylton  v.  Scott,  16 
Ves.  272 ;  Jervoise  v.  Duke  of  Northumberland,  1  J.  &  W.  539.  If,  after  the 
vendor  has  produced  all  the  proof  he  can,  a  reasonable  doubt  still  remains, 
the  title  is  not  marketable,  and  the  purchaser  is  not  obliged  to  take  it. 
Shriver  v.  Shriver,  86  N.  Y.  575. 

•Reynolds  v.  Strong,  82  Hun  (N.  Y.),  202;  31  N.  Y.  Supp.  329,  where  it 
was  said  that  a  title  may  be  valid,  and  yet  not  marketable.  A  material 
defect  in  the  title  to  land,  is  such  a  defect  as  will  cause  a  reasonable  doubt 
and  just  apprehension  in  the  mind  of  a  reasonable,  prudent  and  intelligent 
person,  acting  upon  competent  legal  advice,  and  prompt  him  to  refuse  to  take 
the  land  at  a  fair  value.  Eggers  v.  Busch,  154  111.  604;  39  N.  E.  Rep.  619. 

'  Post,  this  ch.  §  289. 


OF    DOUBTFUL    TITLES.  707 

It  is  impossible  in  the  nature  of  things  that  there  should  be  a 
mathematical  certainty  of  a  good  title.8  Such  a  thing  as  absolute 
security  in  the  purchase  of  real  estate  is  unknown.9  But  a  bare 
possibility  that  a  title  may  be  affected  from  certain  causes,  when  the 
highest  possible  evidence  of  which  the  nature  of  the  case  admits, 
amounting  to  a  moral  certainty,  is  given  that  no  such  cause  exists, 
does  not  render  the  title  doubtful.10  The  purchaser  cannot  demand 
a  title  absolutely  free  from  all  suspicion  or  possible  defect.  He  can 
simply  require  a  title  such  as  prudent  men,  well  advised  as  to  the 
facts  and  their  legal  bearings,  would  be  willing  to  accept.11  The 
doubts  must  be  such  as  will  affect  the  market  value  of  the  estate." 
They  must  not  be  made  up  for  the  occasion,  based  on  captious, 
frivolous  and  astute  niceties ;  they  must  be  such  as  would  induce  a 
prudent  man  to  hesitate  in  accepting  a  title  affected  by  them.13 
What  matters  of  law  or  Avhat  matters  of  fact  are  sufficient  to  make 
a  title  so  doubtful  as  to  be  unmarketable,  cannot  be  indicated  by 
positive  rules.  Facts  or  questions  which  present  no  difficulties  to 
one  judicial  mind  may,  in  the  opinion  of  an  another,  raise  in- 
superable objections  to  the  title.14  It  is  obvious  that  the  existence 
of  a  "  fair  and  reasonable  doubt "  as  to  the  title  must  depend  upon 
the  capacities  of  the  judge  to  whom  the  question  is  addressed. 
"  Practically  the  judge  acts  upon  his  own  doubts."1  It  has  been 
said  that  the  title  which  a  purchaser  will  be  required  to  take  should 
be,  like  Cesar's  wife,  free  from  suspicion,  but  that  the  purchaser 
will  not  be  relieved  on  account  of  possibilities  of  defects,  or  mere 

'Language  of  Lord  HARDWICKE  in  Lyddall  v.  Weston,  2  Atk.  20.  First 
African  Soc.  v.  Brown,  147  Mass.  196,  298;  17  N.  E.  Rep.  549. 

•Rawle  Covts.  for  Title    (5th  ed.),  259. 

10Moser  v.  Cochran,  107  N.  Y.  35;  13  N.  E.  Rep.  442;  Scherraerhorn  r. 
Niblo,  2  Bosw.  (N.  Y.)  161.  Hedderley  v.  Johnson,  42  Minn.  443;  44  N.  W. 
Rep.  527.  Webb  v.  Chisolm,  24  S.  C.  487.  Crasser  v.  Blank,  110  La.  493; 
34  So.  Rep.  648. 

"Todd  v.  Union  Dime  Sav.  Inst.,  128  N.  Y.  636;  2*8  N.  E.  Rep.  504. 

"Vreeland  v.  Blauvelt,  23  N.  J.  Eq.  485.  A  marketable  title  is  one  that 
will  bring  as  high  a  price  in  the  market  with  the  purchaser's  objection  to  its 
sufficiency  as  without.  Paimly  v.  Head,  33  111.  App.  134. 

"Nicol  v.  Carr,  35  Pa.  St.  38.     Kimball  v.  Tooke,  70  111.  553. 

"Atk.  Marketable  Title  (Law  Lib.),  ch.  1;  1  Sugd.  Vend.  (8th  Am.  ed.) 
579  (387). 

"Sedgwick  v.  Hargrave,  2  Ves.  59. 


708  MARKETABLE    TITLE    TO    REAL    ESTATE. 

suspicions  of  faults  ending  only  in  suspicion."  The  doubt  must  be 
"  grave  and  reasonable."1  If  there  is  such  doubt  as  to  make  it 
probable  that  the  purchaser's  right  may  become  a  matter  of  investi- 
gation, he  will  not  be  compelled  to  complete  the  purchase."  If  the 
doubt  arise  upon  a  question  of  fact  of  such  nature  as  not  to  admit 
of  proof,  such  as  a  statement  that  a  certain  act,  which  would  make 
void  the  vendor's  title,  had  not  been  committed;"  or,  if  a  defect 
appear  and  the  title  depends  upon  facts  removing  it,  which  facts 
the  purchaser  can  only  establish  by  parol  testimony  should  his 
title  be  afterwards  attacked,20  the  purchaser  will  be  relieved.  An 
often-cited  English  case  establishes  the  rule  that  a  title  is  doubtful 
when  it  is  such  as  other  persons  may  question,  though  the  court 
regards  it  favorably,  and  that  if  the  doubt  arise  upon  a  question 
connected  with  the  general  law,  the  court  is  to  judge  whether  the 
law  is  settled ;  if  not  settled,  or  if  extrinsic  circumstances  affecting 
the  title  appear,  which  neither  the  court  nor  the  purchaser  can 
satisfactorily  investigate,  the  purchaser  will  be  relieved.21 

The  defect  of  title  of  which  the  purchaser  complains  must  be 
of  a  substantial  character;  one  from  which  he  may  suffer  injury. 
Mere  immaterial  defects  which  do  not  diminish  in  quantity,  qual- 
ity, or  value  the  property  contracted  for,  constitute  no  ground  upon 
which  he  may  reject  the  title.22  Facts  must  be  known  at  the  time 
which  fairly  raise  a  reasonable  doubt  as  to  the  title;  a  mere  pos- 
sibility or  conjecture  that  such  a  state  of  facts  may  be  developed 
at  some  future  time  is  not  sufficient.28 

"Gordon  v.  Champneys,  Turn.  &  Russ.  88.  Laurens  v.  Lucas,  6  Rich. 
(S.  C.)  Eq.  217;  Monagan  v.  Small,  6  Rich.  N.  S.  (S.  C.)  177.  Carroll  v. 
McKahary,  55  X.  Y.  Supp.  113;  35  App.  DiT.  528.  While  the  court  will  give 
the  purchaser  reasonable  assurance  of  security,  it  will  not  countenance  the 
idle  scruples  of  one  interested  in  withholding  the  purchase  money.  Brown  v. 
Witter,  10  Ohio,  143. 

"  Moore  v.  Appleby,  108  X.  Y.  237 ;  15  N.  E.  Rep.  377 ;  1  Coll.  102. 

MPer  TIXDAL,  C.  J-,  in  Curling  v.  Shuttleworth,  6  Taunt.  121. 

"  1  Sugd.  Vend,   (8th  Am.  ed.)   609.     Lowe  v.  Lush,  14  Ves.  Jr.  547. 

"Moore  v.  Williams,  115  N.  Y.  586;  22  N.  E.  Rep.  233. 

aPyrke  v.  Waddingham,  17  Eng.  L.  i  Eq.  534;  10  Hare,  1. 

"Riggs  v.  Pursell,  66  N.  Y.  193;  Mead  v.  Martens,  47  N.  Y.  Supp.  299; 
21  App.  Div.  134. 

3  Gates  v.  Parmly,  93  Wis.  294;  66  N.  W.  Rep.  253;  67  N.  W.  Rep.  739. 


OF    DOUBTFUL   TITLES.  709 

The  purchaser  is  entitled  to  rescind  the  contract  where  the  title 
is  doubtful,  as  well  as  where  it  is  absolutely  bad,  but  it  has  been 
frequently  said  that  equity  will,  in  many  cases,  deny  the  vendor's 
application  for  specific  performance,  when  it  would  not  entertain  a 
bill  by  the  purchaser  to  rescind,  in  other  words,  that  it  requires  a 
stronger  case  to  induce  a  chancellor  to  rescind  a  contract,  than  to 
withhold  his  assistance  in  causing  it  to  be  executed.24  This  is  doubt- 
less true  as  to  contracts  which  have  been  partly  executed,  as  by  pay- 
ment of  the  purchase  money  on  the  one  part,  and  delivery  of  pos- 
session on  the  other,  because  in  such  cases  more  or  less  difficult  v 
will  always  be  encountered  in  placing  the  parties  in  statu  quo.  But 
where  neither  party  has  taken  any  step  towards  performance,  no 
reason  is  perceived  why  the  same  want  of  doubtfulness  of  title  in 
the  vendor  which  takes  away  his  right  to  specific  performance, 
would  not  sustain  the  purchaser's  bill  for  rescission.25 

The  doubt  whether  a  title  is  or  is  not  such  as  a  purchaser  can  be 
required  to  take,  depends,  sometimes,  upon  a  question  of  law,  some- 
times upon  a  question  of  fact,  and  sometimes  upon  both.2'  In 
theory  the  court  must  know  whether  the  title  is  good  or  bad,  if  all 
the  facts  respecting  it  are  known  and  undisputed,  for  the  court  is 
presumed  to  know  the  law  applicable  to  those  facts.27  But  no  court 
can  be  certain  that,  upon  a  doubtful  question  of  law,  e.  g.,  whether 
a  certain  limitation,  after  a  life  estate,  was.  a  contingent  remainder 
or  an  executory  devise,28  another  court  of  co-ordinate  jurisdiction 
in  which  the  purchaser's  title  may  be  attacked,  will  pronounce  the 

"Dart  Vend.  (5th  ed.)  734;  Story  Eq.  Jur.  §§  20%  693.  Cans  v.  Renshaw, 
2  Pa.  St.  34;  44  Am.  Dec.  152.  Doubts  as  to  the  title  may  be  sufficient  to 
justify  the  court  in  refusing  to  compel  specific  performance  by  the  purchaser, 
yet  insufficient  to  sustain  an  application  by  the  purchaser  for  rescission, 
especially  if  he  is  in  undisturbed  possession  of  the  premises.  Duvall  v. 
Parker,  2  Duv.  (Ky.)  182. 

**The  question,  if  any,  is  of  little  practical  moment,  except  in  cases  where 
the  contract  has  been  partly  performed,  for  the  purchaser  accomplishes,  as  a 
general  rule,  all  that  he  desires  by  abandoning  the  contract  and  resisting  the 
vendor's  demand  for  specific  performance. 

26 1   Sugd.  Vend.   (8th  Am.  ed.)    580;  2  Beach  Mod.  Eq.  Jur.  C  608. 

"It  the  court  is  fully  informed  of  the  facts,  it  must  know  whether  the 
title  is  good  or  bad.  If  the  facts  are  not  fully  disclosed,  it  may  with  pro- 
priety doubt.  O'Reilly  v.  King,  28  How.  Pr.  (N.  Y.)  408. 

"Roake  v.  Kidd,  5  Ves.  647. 


710  MARKETABLE    TITLE    TO    REAL    ESTATE. 

same  judgment.  If  it  be  necessary  to  declare  a  particular  statute 
unconstitutional  before  the  vendor's  title  can  be  held  good,  the  pur- 
chaser cannot  be  required  to  take  the  title." 

It  is  not  customary  to  examine  the  title  of  a  lessor,  and  no  other 
covenant  for  title  from  him  can  be  required  than  that  the  lessee 
shall  quietly  enjoy  the  estate.30  Hence,  it  is  not  customary  to  raise 
the  objection  that  the  title  of  the  lessor  is  merely  doubtful  or 
unmarketable,  though  it  has  been  held  that  the  title  to  a  ground 
rent  may  be  rejected,  if  the  title  to  the  land  out  of  which  the  rent 
issued  is  unmarketable.31  But  a  purchaser  of  a  leasehold  estate  may 
compel  the  seller  to  produce  the  lessor's  title,  and  may  reject  it  if 
it  proves  to  be  bad,  unless  he  purchased  with  notice  of  the  defect.*2 

Whether  or  not  a  title  is  marketable  is  a  question  of  law  for  the 
court  and  not  for  the  jury.  The  jury  must  find  the  facts,  and  the 
court  determine  their  effect.33  The  opinions  of  conveyancing  coun- 
sel, or  lawyers  in  general,  will  not  be  received  upon  the  question 
whether  a  certain  title  is  or  is  not  marketable.34  But  a  judgment 
will  not  be  reversed  because  of  the  admission  of  such  testimony 
when  it  appears  that  the  entire  title  upon  which  such  witness' 
opinion  was  founded,  was  before  the  court.35  If  a  purchaser  sues 
to  recover  damages  against  his  vendor  for  breach  of  the  contract, 
it  is  not  enough  to  show  that  the  title  has  been  deemed  insufficient 
by  conveyancers;  he  must  prove  the  title  to  be  bad.3*  He  is  not 
exonerated,  in  refusing  to  perform  the  contract,  by  the  advice  of  com- 
petent counsel  that  the  title  is  doubtful,  if  it  be  in  fact  good.  He 

"Daniell  v.  Shaw,  116  Mass.  582;  44  N.  E.  Rep.  791. 
*Rawle  Covts.  for  Title   (5th  ed.),  §  20,  par:  5. 

*  Mitchell  v.  Stinemetz,  97  Pa.  St.  251. 

**1  Sugd.  Vend.   (8th  Am.  ed.)  554   (368).     Purvis  v.  Rayer,  9  Pri.  488. 
»Parmly  v.  Head,  33  111.  App.  134;   17  Wash.  Law  Rep.  332. 

*  Evans  v.  Gerry,  174  111.  595;  51  X.  E.  Rep.  615.     Moser  v.  Cochrane,  107 
N.  Y.  35;   13  N.  E.  Rep.  442.     Montgomery  v.  Pac.  L.  Co.   Bureau,  94  Cal. 
284;  29  Pac.  Rep.  640;  Winter  v.  Stock,  29  Cal  413;  89  Am.  Dec.  57.     Mead 
v.  Atgeld,  33  HI.  App.  373;  S.  C.  on  app.,  26  N.  E.  Rep.  388;  Leahy  v.  Hair, 
33  111.  App.  461.     Atkinson  v.  Taylor,  34  Mo.  App.,  442.     Murray  v.  Ellis, 
112  Pa.  St.  485;  3  Atl.  Rep.  845;  Dalzell  v.  Crawford,  1  Pars.  Sel.  Caa.   (Pa.) 
37.     But  see  Adams  Eq.  198,  and  Hymers  v.  Branch,  6  Mo.  App.  511,  where 
it  was  held  that  if  the  opinion  of  the  court  regarding  a  title  might  be  fairly 
questioned  hy  competent  persons,  the  title  must  be  considered  doubtful. 

"  Mead  V-  Atgeld,  supra. 

"1  Sugd.  Vend.  (8th  Am.  ed.)  537.     Canfield  v.  GUbert,  4  Esp.  221. 


OF    DOUBTFUL   TITLES. 

takes  the  risk  of  the  soundness,  of  the  advice  given,"  As  a  general 
rule  the  vendor  may  remove  doubts  about  the  title  at  any  time 
before  decree,  unless  time  is  of  the  essence  of  the  contract." 

§  284.  CLASSIFICATION  OP  CASES  IN  WHICH  THE  TITLE 
WILL  BE  HELD  DOUBTFUL.  The  following  classification  of  cases 
in  which  the  title  will  be  considered  doubtful,  has  been  made  by  an 
able  text  writer,39  and  is  perhaps  as  logical  and  accurate  as  the 
nature  of  the  subject  will  admit : 

(I)  Where  the  probability  of  litigation  ensuing  against  the  pur- 
chaser in  respect  of  the  matter  in  doubt  is  considerable;  or,  as  it 
ivas  put  by  Alderson,  B.,  where  there  is  a  "reasonable  decent 
probability  of  litigation."™    The  court,  to  use  a  favorite  expression, 
will  not  compel  the  purchaser  to  buy  a  law  suit.*1    If  there  be  any 
reasonable  chance  that  some  third  person  may  raise  a  question 
against  the  owner  of  the  estate  after  the  completion  of  the  contract, 
the  title  will  be  deemed  unmarketable.43 

(II)  Where  there  has  been  a  decision  by  a  court  of  co-ordinate 

"Montgomery  v.  Pacific  L.  Co.  Bureau,  94  Cal.  284;  29  Pac.  Rep.  640. 

••Post.  ch.  32.     Longworth  v.  Taylor,  1  McLean,  (U.  S.),  395. 

»  Fry  Spec.  Perf.  §  870. 

"Cattell  v.  Corrall,  4  Y.  &  C.  Ex.  237. 

"Post,  this  chapter,  §  200.  Price  v.  Strange,  6  Madd.  159,  165;  Sharp  T. 
Adcock,  4  Russ.  374;  Haseltine  v.  Simmons,  6  W.  R.  268;  Pegler  v.  White, 
33  Beav.  403.  See,  also,  Potter  v.  Parry,  7  W.  R.  182;  Burnell  v.  Firth,  15 
W.  R.  546.  A  purchaser  will  not  be  compelled  to  accept  a  conveyance  from 
a  trustee  under  a  will  when  a  suit  is  pending  to  test  the  validity  of  the  will. 
Hale  v.  Cravener,  128  111.  408;  21  N.  E.  Rep.  534.  A 'title  dependent  on 
questions  as  to  the  right  of  an  executor  to  sell  under  the  will,  and  as  to 
whether  certain  devisees  had  not  elected  to  take  under  the  will,  both  of  which 
questions  are  in  litigation,  is  not  marketable.  Warren  v.  Banning,  21  N.  Y. 
Supp.  883.  A  title  suggestive  of  future  litigation  is  unmarketable.  Beer  v. 
Leonard,  40  La.  Ann.  845;  5  So.  Rep.  257;  James  v.  Meyer,  41  La.  Ann.  1100; 
7  So.  Rep.  618.  Qucere,  whether  a  purchaser  can  be  compelled  to  accept  a 
tax  title?  The  court  intimated  that  such  a  title  migfit  be  as  free  from  ob- 
jection as  any  other.  Lesley  v.  Morris,  9  Phila.  (Pa.)  110;  30  Leg.  Int.  108. 

a  Seaman  v.  Vawdrey,  16  Ves.  390.  A  title  is  doubtful  if  it  exposes  the 
purchaser  to  litigation.  Freetly  v.  Barnhart,  51  Pa.  St.  279;  Speakman  v. 
Forepaugh,  44  Pa.  St.  3G3.  "  If  the  purchaser  would  be  exposed  to  a  lawsuit 
with  the  least  chance  of  losing  it,  he  ought  not  to  be  held  to  the  bargain." 
GIBSON,  C.  J.,  in  Cans  v.  Renshaw,  2  Pa.  St.  34;  44  Am.  Dec.  152.  A  title 
dependent  upon  the  question  wheth'er  certain  acts,  conduct  or  admissions 
amount  to  an  estoppel  in  pat's  is  unmarketable.  McGrane  v.  Kennedy,  10  N. 
Y.  Supp.  119. 


712  MARKETABLE    TITLE    TO    REAL    ESTATE. 

jurisdiction  adverse  to  the  title,  or  to  the  principle  on  which  the 
title  rests,  though  the  court  thinks  that  decision  wrong.49 

(III)  Where  there  has  been  a  decision  in  favor  of  the  title, 
which  the  court  thinks  wrong" 

(IV)  Where  the  title  depends  on  the  construction  and  legal 
operation  of  some  ill-expressed  and  inartificial  instrument,  and  the 

'court  holds  the  conclusion  it  arrives  at  to  lie  open  to  reasonable 
doubt  in  some  other  court.**  Generally,  it  may  be  said  that  the 
opinion  of  the  court  upon  any  question  of  law  on  which  the  title 
depends,  will  not  render  the  title  marketable  if  the  court  thinks 
that  another  judge46  or  other  competent  person47  might  entertain  a 
different  opinion  upon  the  same  question.  The  test  as  to  whether  a 
title  is  doubtful  or  not  upon  a  question  of  law,  has  been  held  to  be 
the  certain  conviction  of  the  court,  in  deciding  the  point,  that  no 
other  judge  would  take  a  different  view.48 

(V)  Where  the  title  rests  on  a  presumption  of  fact  of  such  a 
kind  that  if  the  question  of  fact  were  before  a  jury  it  would  be  the 
duty  of  the  judge  not  to  give  a  clear  direction  in  favor  of  the  fact, 
but  to  leave  the  jury  to  draw  their  own  conclusions  from  the 
evidence.*9 

43  Per  ROMIIXY,  M.  R.,  in  Mullings  v.  Trinder,  L.  R.,  10  Eq.  454.  Ferris  v. 
Plummer,  42  Hun  (N.  Y.),  440.  Wesley  v.  Eells,  177  U.  S.  370. 

**  Per  ROMILLY,  M.  R.,  in  Mullings  v.  Trinder,  L.  R.,  10  Eq.  454. 

46  Alexander  v.  Mills,  L.  R.,  6  Ch.  132;  Pyrke  v.  Waddingham,  10  Hare,  1; 
17  Eng.  L.  &  Eq.  534.  Richards  v.  Knight,  64  N.  J.  Eq.  196;  53  Atl.  452; 
McCaffery  v.  Little,  20  App.  D.  C.  116.  A  doubtful  title  cannot  be  made 
marketable  by  an  opinion  of  a  court  upon  a  case  stated  between  the  vendor 
and  purchaser.  Pratt  v.  Eby,  67  Pa.  St.  396. 

"  Vreeland  v.  Blauvelt,  23  N.  J.  Eq.  483.  The  fact  that  a  court  is  divided 
in  opinion  as  to  the  construction  of  a  statute  affecting  the  validity  of  a  title 
is  of  itself  sufficient  ground  for  refusing  to  compel  the  purchaser  to  complete 
the  contract.  Pratt  v.  Eby,  67  Pa.  St.  396. 

a  2  Beach  Mod.  Eq.  Jur.  §  606. 

48  2  Dart  Vend.  1102.  Rogers  v.  Waterhouse,  4  Drew,  32;  Pegler  v.  White, 
33  Beav.  403;  Howe  v.  Hunt,  31  Beav.  420.  But  see  Beioley  v.  Carter,  L.  R. 
4  Ch.  App.  230,  and  cases  cited.  2  Dart  Vend.  1103,  n. 

"Emery  v.  Grocock,  6  Madd.  54.  Shriver  v.  Shriver,  86  N.  Y.  575.  To 
this  class,  the  author  says,  may  be  referred  many  of  those  cases  where  a 
doubt  as  to  a  fact  has  prevailed ;  as  where  the  title  depended  upon  proof 
that  there  was  no  creditor  who  could  take  advantage  of  an  act  of  bankruptcy 
committed  by  the  vendor  (Lower  v.  Lush,  14  Ves.  547),  or  where  the  title 
depended  upon  the  absence  of  notice  of  an  incumbrance,  of  which  absence  the 


OF    DOUBTFUL   TITLES.  713 

(VI)  Where  the  circumstances  amount  to  presumptive  (though 
net  necessarily  conclusive)  evidence  of  a  fact  fatal  to  the  title,  as, 
e.  g.,  that  the  exercise  of  a  power  under  which  the  vendor  claimed 
was  a  fraud  upon  the  power.50 

§  285.  CLASSIFICATION  OF  CASES  IN  WHICH  THE  TITLE 
WILL  NOT  BE  HELD  DOUBTFUL.  The  same  author  makes  the 
following  classification  of  cases  in  which  the  court  would  not,  as 
he  conceives,  consider  the  title  to  be  doubtful :" 

(I)  Where  the  probability  of  litigation  ensuing  against  the 
purchaser  in  respect  of  the  doubt  is  not  great;  the  court,  to  use 
Lord  Hardwicke's  language  in  one  case,  "  must  govern  itself  by  a 
moral  certainty,  for  it  is  impossible  in  the  nature  of  things  there 
should  be  a  mathematical  certainty  of  a  good  title."™ 

(II)  Where  there  has  been  a  decision  adverse  to  the  title  by  an 
inferior  court,  which  decision  the  superior  court  holds  to  be  clearly 
wrong.63 

(III)  Where  the  question  depends  on  the  general  law  of  the 

render  produced  some  evidence  (Freer  v.  Hesse,  4  De  G.,  M.  &  G.  495),  or 
upon  the  presumption  arising  from  mere  possession.  Eyton  v.  Dieken,  4  Pri. 
303. 

"Warde  v.  Dixon,  28  L.  J.  Ch.  315;  S.  C.,  7  W.  R.  148. 

"Fry  Sp.  Perf.   (3d  Am.  ed.)   §  871. 

"Lyddall  v.  Weston,  2  Atk.  19.  In  this  case  specific  performance  by  the 
purchaser  was  enforced,  though  there  was  a  reservation  of  mines  by  the 
crown,  the  court  being  satisfied  that  there  was  no  subject-matter  for  the 
reservation  to  act  upon  or  that  all  legal  right  to  exercise  it  had  ceased.  See, 
also,  Seaman  v.  Vawdrey,  16  Ves.  393;  Martin  v.  Cotter,  3  Jon.  &  L.  496.  In 
Spencer  v.  Topham,  22  Beav.  573,  an  unwilling  purchaser  was  compelled  to 
take  a  title  depending  on  the  validity  of  a  purchase  by  a  solicitor  from  his 
client,  on  proof  of  the  validity  of  the  transaction,  though  given  in  the  absence 
of  the  client,  who,  it  was  urged,  might  possess  other  evidence  and  ultimately 
set  aside  the  sale.  Sec,  also,  Falkner  v.  Equitable  Reversionary  Society,  4 
Drew,  352.  The  mere  fact  that  the  purchaser  is  to  take  under  an  assignment 
for  the  benefit  of  creditors,  which  may  be  attacked  as  invalid,  does  not  render 
the  title  doubtful  or  unmarketable  in  the  absence  of  anything  to  show  that  the 
title  will  probably  be  attacked.  Bayliss  v.  Sinson,  110  N.  Y.  621;  17  N.  E. 
Rep.  144.  The  bare  possibility  that  minor  heirs  may  attack  the  probate  of 
their  ancestor's  will  within  the  time  allowed  them  by  statute  after  attaining 
their  majority,  with  nothing  to  show  even  a  suspicion  of  the  existence  of 
probable  grounds  for  such  an  attack,  does  not  render  a  title  under  the  will 
unmarketable.  McCaffery  v.  Little,  20  App.  D.  C.  116. 

"Beioley  v.  Carter,  L.  R.,  4  Ch.  230;  Alexander  v.  Mills,  L.  R.,  6  Ch.  124; 
Radford  v.  Willis,  L.  R.,  7  Ch.  7.  Holly  v.  Hirsh,  135  N.  Y.  590;  32  N.  E. 
Rep.  709. 


714  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

land;  "as  a  general  and  almost  universal  rule  the  court  is  bound 
as  much  between  vendor  and  purchaser,  as  in  every  other  case,  to 
ascertain  and  so  determine  as  best  it  may,  what  the  law  is,  and  to 
take  that  to  be  the  law  which  it  has  so  ascertained  and  deter- 
mined."54 An  illustration  of  this  rule,  as  applied  in  America,  will 
be  found  in  the  case  of  Fairchild  v.  Marshall.55  In  that  case  the 
purchaser  objected  to  the  title  on  the  ground  that  the  land  was  sub- 
ject to  a  claim  of  dower  in  favor  of  the  widow  of  a  former  owner, 
but  the  vendor  showed  that  the  widow  had  elected  to  take  a  pro- 
vision in  her  husband's  will  in  lieu  of  dower,  and  the  Supreme 
Court  in  that  State  having  decided  that  such  election  constituted  a 
bar  to  dower,  it  was  held  that  the  question  of  law  whether  such 
election  barred  the  widow's  claim  to  dower  could  no  longer  be 
considered  doubtful,  and  that  the  purchaser  must  complete  the 
contract. 

(IV)  Where  the  question,  though  one  of  construction,  turns  on 
a  general  rule  of  construction,  unaffected  by  any  special  context  in 
the  instrument  and  the  court  is  in  favor  of  the  title.56 

(V)  Where  the  title  depends  on  a  presumption,  provided  it  be 
such  that  if  the  question  were  before  a  jury,  it  would  be  the  duty 
of  the  judge  to  give  a  clear  direction  in  favor  of  the  fact,  and  not 
to  leave  the  evidence  generally  to  the  consideration  of  the  jury." 

"Per  JAMES,  L.  J.,  in  Alexander  v.  Mills,  L.  R.,  6  Ch.,  131,  132;  Forster 
v.  Abraham,  L.  R.  17  Eq.  351;  Osborne  v.  Rowlett,  13  Ch.  D.  774;  Pyrke  v. 
Waddingham,  10  Hare,  1 ;  Palmer  v.  Locke,  18  Ch.  Div.  381 ;  In  re  Thackeray, 
40  Ch.  Div.  34.  Where  there  is  a  doubt  about  the  validity  of  a  title  arising 
from  a  construction  of  an  act  of  parliament,  or  the  language  of  an  instrument 
or  will,  it  is  the  duty  of  the  court  to  remove  the  doubt  by  deciding  it.  The 
decision  removes  the  doubt,  and  specific  performance  will  be  adjudged.  Bell 
v.  Holtby,  L.  R.,  15  Eq.  178.  See  Fairchild  v.  Marshall,  42  Minn.  14;  43  N. 
W.  Rep.  563;  Ebling  v.  Dwyer,  149  N.  Y.  460;  44  N.  E.  155;  Williams  v.  Marx, 
124  Cal.  22;  56  Pac.  Rep.  603;  Ladd  v.  Weiskopf,  62  Minn.  29;  64  N.  W. 
Rep.  99;  Lippincott  v.  Wikoff,  54  N.  J.  Eq.  107;  33  Atl.  305.  Hatt  v.  Rich, 
59  N.  J.  Eq.  492;  45  Atl.  969.  A  doubt  precluding  specific  performance  exists 
if  the  seller's  title  depends  on  a  legal  question  not  settled  by  previous  de- 
cisions, or  concerning  which  there  are  dicta  of  weight  indicating  that  courts 
might  differ  as  to  its  determination.  Richards  v.  Knight,  64  N.  J.  Eq.  196; 
53  Atl.  452. 

55  42  Minn.  14 ;  43  N.  W.  Rep.  563. 

M  Radford  v.  Willis,  L.  R.,  7  Ch.  7. 

57  Emery  v.  Grocock,  6  Madd.  54 ;  Barnwell  v.  Harris,  1  Taunt.  430.  Thua, 
where  the  recital  of  deeds  raised  the  presumption  that  they  contained  nothing 


OF    DOUBTFUL   TITLES.  715 

(VI)  Where  the  doubt  rests  not  on  proof  or  presumption  but  on 
a  suspicion  of  mala  fides.™  But  a  purchaser  cannot  be  compelled 
to  take  a  title  which  is  open  to  attack  on  the  ground  of  fraud, 
bad  faith,  or  breach  of  trust  on  the  part  of  one  through  whom  the 

adverse  to  the  title,  the  mere  loss  of  the  deed,  where  the  title  was  fortified  by 
sixty  years'  undisputed  possession,  was  held  not  to  create  a  reasonable  doubt. 
Prosser  v.  Watts,  6  Madd.  59;  Magennis  v.  Fallon,  2  Moll.  561.  So,  where  the 
validity  of  a  title  depended  on  no  execution  having  been  taken  out  between 
certain  specified  times,  and  nothing  was  shown  to  have  been  done  which  could 
be  referred  to  such  an  execution,  the  title  was  held  good.  Causton  v.  Macklew, 
2  Sim.  242.  So,  also,  a  prior  voluntary  conveyance  by  the  purchaser's  grantor 
is  no  sufficient  objection  to  the  title,  the  court  acting  upon  the  presumption 
that  the  voluntary  conveyance  had  not  been  validated  by  subsequent  dealings. 
Butterfield  v.  Heath,  15  Beav.  408;  Buckle  v.  Mitchell,  18  Ves.  100. 

M  This  point,  the  author  says,  has  given  rise  to  some  diversity  of  opinion. 
In  Hartley  v.  Smith,  6  Buck  Bankr.  C.  368,  the  title  depended  on  a  grant  of 
chattels,  possession  of  which  was  conditionally  reserved  by  the  grantor  in 
fraud,  it  was  alleged,  of  creditors.  The  purchaser  was  relieved  from  the  bar- 
gain on  the  ground  that  he  had  no  adequate  means  of  ascertaining  the  bona 
fides  of  the  transaction.  See,  also,  Boswell  v.  Mendham,  6  Mad.  373.  But 
the  mere  possibility  of  fraud  in  extrinsic  facts  cannot  always  be  held  a 
sufficient  objection  to  the  title.  Cattell  v.  Corrall,  4  Y.  &  C.  Ex.  228;  Green 
r.  Pulsford,  2  Beav.  71;  McQueen  v.  Farquhar,  11  Ves.  467;  Alexander  v. 
Mills,  L.  R.,  6  Ch.  124.  See,  also,  Grove  v.  Bastard,  1  De  G.,  M.  &  G.  69; 
Re  Huish's  Charity,  L.  R.,  10  Eq.  5;  Colton  v.  Wilson,  3  P.  Wms.  190;  Morri- 
son v.  Arnold,  19  Ves.  670;  Weddall  v.  Nixon,  17  Beav.  160;  McCulloch  v. 
Gregory,  3  K.  &  J.  12.  Jacobs  v.  Morrison,  136  N.  Y.  101 ;  32  N.  E.  Rep.  552. 
Whether  a  title  derived  through  one  who  purchased  in  his  own  right  forty 
years  before  at  a  sale  made  by  himself  as  trustee,  was  valid,  there  being  noth- 
ing to  show  that  the  trustee  did  not  properly  account  to  the  cestui  que  trutt, 
and  the  property  having  been  frequently  transferred  in  the  meanwhile.  Held, 
marketable.  Herbert  v.  Smith,  6  Lans.  (N.  Y.)  493.  Where,  by  order  of 
court,  trustees  were  permitted  to  purchase  the  trust  subject,  the  beneficiaries 
being  parties  to  the  suit,  it  was  held  that  such  a  purchase  formed  no  ground 
of  objection  to  the  title.  Webster  v.  Kings  Co.  Trust  Co.,  145  N.  Y.  275;  39 
N.  E.  Rep.  964.  If  the  trustee  purchase  the  trust  subject  himself  he  cannot 
rescind  the  contract  on  the  ground  that  the  sale  was  invalid.  Peay  v.  Capps, 
27  Ark.  160.  Richardson  v.  Jones,  3  Gill  &  J.  (Md.)  163;  22  Am.  Dec.  293. 
There  is  no  presumption  of  law  that  property  acquired  by  a  married  woman 
by  conveyance  from  a  third  person,  was  paid  for  out  of  the  husband's  means, 
nor  that  the  conveyance  was  made  to  the  wife  for  the  purpose  of  defeating 
the  husband's  creditors.  Hence,  the  mere  fact  that  a  title  is  derived  through 
such  a  conveyance  will  not  render  it  unmarketable.  Nicholson  v.  Condon, 
71  Md.  620;  18  Atl.  Rep.  812.  As  to  the  effect  of  payment  by  the  husband 
.  for  property  conveyed  to  the  wife,  see  Seldner  v.  McCreery,  75  Md.  287 ;  2S 
Atl.  Rep.  641. 


716  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

title  is  derived.59  Thus,  where  a  conveyance  of  land  was  made  by 
the  defendant  in  a  suit  just  before  judgment  for  a  large  sum  was 
rendered  against  him,  which  judgment  would  have  bound  the  land 
if  the  conveyance  had  not  been  made,  and  the  evidence  failed  to 
show  that  the  purchase  was  made  in  good  faith,  without  notice  and 

"  Preissenger  v.  Sharp,  39  St.  Rep.  (N.  Y.)  260;  14  N.  Y.  Supp.  372,  where 
the  question  was  whether  a  certain  sale  was  no  more  than  a  purchase  of  the 
trust  subject  by  the  trustee  himself.  Gardner  v.  Dembinsky,  65  N.  Y.  Supp. 
183;  52  App.  Div.  473,  in  which  case  the  trustee  purchased  the  premises  at  a 
sale  made  by  himself.  See,  also,  People  v.  Globe  Ins.  Co.,  33  Hun  (N.  Y.), 
393.  Close  v.  Stuyvesant,  132  111.  607;  24  N.  E.  Rep.  868.  Where  the  question 
was  whether  a  certain  entry  of  public  lands  would  probably  be  canceled  as 
fraudulent:  McPherson  v.  Smith,  49  Hun  (N.  Y.),  254;  2  N.  Y.  Supp.  60. 
Titles  dependent  upon  the  following  questions  involving  mala  fides,  have  been 
held  unmarketable:  Whether  a  purchase  of  the  premises  in  partition  by  one 
suing  as  next  friend  to  an  infant  was  valid:  Collins  v.  Smith,  1  Head 
(Tenn.),  251.  Whether  a  conveyance  voluntary  on  its  face  could  be  sustained 
against  a  subsequent  judgment  creditor  of  the  grantor:  Tillotson  v.  Gesner, 
6  Stew.  Eq.  (N.  J.)  313.  Whether  a  purchaser  of  an  estate  from  trustees 
under  a  will  had  acted  in  collusion  with  the  trustees  to  defeat  the  purposes 
of  the  testator  by  the  sale:  McPherson  v.  Smith,  49  Hun  (N.  Y.),  254;  2 
N.  Y.  Supp.  60.  Whether  a  sale  and  conveyance  by  an  executor  to  A.,  and  a 
reconveyance  within  four  days  by  A.  to  the  executor,  was  in  fact  no  more 
than  a  sale  by  the  executor  to  himself:  People  v.  Open  Board,  etc.,  92  N.  Y. 
98.  Whether  a  purchase  by  a  wife  at  a  sale  made  by  her  husband  as  assignee 
for  the  benefit  of  creditors,  was  in  substance  a  purchase  by  the  assignee  him- 
self: WTohlfarth  v.  Chamberlain,  6  N.  Y.  St.  Rep.  207.  Whether  a  sale  under 
an  execution,  creating  an  apparent  cloud  on  the  vendor's  title,  was  fraudulent, 
irregular  and  void:  Morgan  v.  Morgan,  2  Wh.  (U.  S.)  290.  Whether  a  pur- 
chase of  part  of  the  estate  of  a  decedent  by  his  executor,  in  good  faith,  was 
valid.  Weil  v.  Radley,  52  N.  Y.  Supp.  398.  In  Gans  v.  Renshaw,  2  Pa.  St.  34 ; 
44  Am.  Dec.  152,  it  being  questionable  whether  the  conveyance  under  which 
the  vendor  held,  was  fraudulent  and  void,  the  purchaser  was  relieved.  Where 
the  vendor  claimed  title  through  a  sheriff's  deed,  and  affidavits  had  been  filed 
in  the  proceedings  in  which  such  sale  had  been  made,  showing  that  the  sale 
had  been  procured  to  defeat  the  rights  of  third  persons  who  had  recovered 
judgment  in  ejectment  for  the  land,  the  title  was  held  unmarketable.  Herman 
v.  Sommers,  158  Pa.  St.  424.  Titles  held  marketable.  Whether  title  dependent 
on  a  sale,  under  decree,  to  the  wife  of  a  special  guardian,  was  questionable, 
the  sale  having  been  confirmed  and  26  years  having  elapsed  without  attack 
by  parties  interested.  Strauss  v.  Benheim,  59  N.  Y.  Supp.  1054;  28  Misc. 
Rep.  660.  Whether  the  court  may  ratify  a  sale  by  executors  to  the  wife  of 
one  of  the  executors,  none  of  the  parties  in  interest  having  elected  to  exercise 
their  right  to  have  the  sale  declared  void.  Rhodes  v.  Caswell,  58  N.  Y.  Supp. 
470;  41  App.  Div.  229.  Whether  a  purchase  by  the  wife  of  an  executor  and 
daughter  of  the  testator,  at  the  executor's  sale,  after  extensive  advertising 
and  spirited  bidding,  and  for  full  value,  was  valid.  Miller  v.  Weinstein,  65 


OF    DOUBTFUL   TITLES.  717 

for  valuable  consideration,  it  was  held  that  a  purchaser  could  not 
be  compelled  to  accept  a  title  dependent  upon  such  conveyance.10 
§  286.  DOCTBINE  OF  DOUBTFUL  TITLES  AT  LAW.  Relief  to 
a  purchaser  in  respect  to  a  title  absolutely  bad  and  not  merely 
doubtful,  may  be  administered  in  several  ways.  Thus,  at  law  he 
may  maintain  an  action  for  breach  of  the  contract,  express  or 
implied,  to  convey  a  good  title ;  or  he  may  rescind  the  contract  and 
maintain  assumpsit  to  recover  back  so  much  of  the  purchase  money 
as  may  have  been  paid ;  or  to  an  action  against  him  for  damages  in 
failing  to  perform  the  contract  on  his  part,  or  to  recover  the  pur- 
chase money,  he  may  set  up  the  vendor's  want  of  title  as  a  de- 
fense.61 In  equity  in  case  of  a  defective  title  he  may  file  his  bill 
demanding  a  rescission  of  the  contract,  or  specific  performance  of 
the  agreement  to  convey  good  title,  or  damages  in  lieu  thereof,  if 
it  appear  that  the  vendor  cannot  perform  the  contract ;  or  to  a  bill 
against  him  for  specific  performance  he  may  show  as  a  defense  the 
claimant's  want  of  title.62  But  in  respect  to  a  merely  doubtful  title, 
one  which  might  upon  protracted  and  expensive  litigation  with 
third  parties,  prove  valid,  the  purchaser  had  under  the  common- 
law  procedure  no  relief;  all  titles  being  considered  at  law  either 
good  or  bad.63  Thus,  if  in  an  action  at  law  against  the  purchaser 
for  breach  of  the  contract,  he  was  not  able  to  demonstrate  that  the 
plaintiff's  title  was  absolutely  bad,  and  could  only  suggest  doubts 

N.  Y.  Supp.  387;  52  App.  Div.  533.  Where  a  guardian  failed  to  pay  the 
interest  on  a  mortgage  of  the  lands  of  his  wards,  who  were  his  children,  and 
the  lands  were  sold  on  foreclosure  to  one  who  afterwards  conveyed  them  to  the 
guardian  at  the  foreclosure  price,  it  was  held,  in  the  absence  of  evidence  of 
bad  faith  or  of  injury  to  the  wards,  that  the  purchase  was  valid  and  the  title 
of  the  guardian  marketable.  Kullman  v.  Cox,  167  N.  Y.  411;  60  N.  E.  Rep.  744. 

"Tillotson  v.  Gesner,  33  N.  J.  Eq.  313. 

"Ante,  p.  3,  Dart  Vend.  975.     Stevens  v.  Austin,  7  Jur.   (N.  S.)  873. 

a  Ante,  p.  3,  Dart  Vend.  982. 

«*  1  Sugd.  Vend.  596.  Romilly  v.  James,  6  Taunt.  263 ;  Camfield  v.  Gilbert, 
4  Esp.  221.  But  see  Simmons  v.  Haseltine,  5  C.  B.  (N.  S.)  554.  "There  can 
be  no  such  thing  as  a  doubtful  title  in  a  court  of  justice;  it  must  be  either 
right  or  wrong,  and  the  thickness  of  the  medium  through  which  the  point 
is  to  be  seen,  makes  no  difference  in  the  end."  Baron  EYRE  in  Gale  v.  Gale, 
2  Coxe,  145.  But  a  purchaser  has  been  permitted  at  law  to  show  that  the 
vendor's  title,  apparently  good,  is  liable  to  be  defeated;  as  where  a  right  to 
re-enter  upon  a  grantee  or  lessee  for  covenants  or  conditions  broken  exista. 
1  Sugd.  Vend.  (8th  Am.  ed.)  597. 


718  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

arising  upon  points  of  law  or  upon  facts  affecting  the  title,  judg- 
ment for  the  plaintiff  followed,  and  the  purchaser  was  left  to  his 
remedy,  if  any,  in  equity.64  Such  was  formerly  the  state  of  the 
law  in  England,  and  it  is  perhaps  the  same  in  some  of  the  Ameri- 
can States  to-day.  But  now,  by  virtue  of  express  statutory  pro- 
vision in  England,65  and  in  consequence  of  statutes  in  many  of  the 
States  abolishing  all  distinctions  between  legal  and  equitable  pro- 
cedure, the  purchaser  may  have  the  full  benefit  of  the  doctrine 
of  doubtful  titles  in  any  action  at  law  by  or  against  him  to  enforce 
any  right  founded  on  the  contract  of  sale.66  In  some  of  the  States 
which  retain  the  separate  legal  and  equitable  jurisdiction,  a  stat- 
utory provision  exists  allowing  the  defendant  in  an  action  on  the 
contract  to  avail  himself  of  any  matter  which  would  enable  him 
to  relief  in  equity  as  a  defense  to  the  action.67  Under  such  pro- 
visions it  is  presumed  that  the  purchaser,  when  sued  for  the  price 

"Moore  v.  Williams,  115  N.  Y.  586;  22  N.  E.  Rep.  233. 

•1  Sugd.  Vend.   (8th  ed.)  597;  17  &  18  Viet.  c.  125,  §  83. 

M2  Beach  Mod.  Eq.  Jur.  §  607.  M.  E.  Church  Home  v.  Thompson,  108 
N.  Y.  618;  15  N.  E.  Rep.  193;  Moore  v.  Williams,  115  N.  Y.  586;  22  N.  E. 
Rep.  233,  disapproving  Romilly  v.  James,  6  Taunt.  263.  O'Reilly  v.  King, 
2  Rob.  (N.  Y.)  587;  M.  E.  Church  Home  v.  Thompson,  52  N.  Y.  Super.  Ct. 
321,  and  Bayliss  v.  Stimson,  53  N.  Y.  Super.  Ct.  225.  Other  New  York  cases 
which  follow  O'Reilly  v.  King,  supra,  or  maintain  the  same  doctrine,  and 
which  must  be  regarded  as  overruled  or  disapproved  by  Moore  v.  Williams, 
supra,  so  far  as  the  right  to  recover  back  the  purchase  money  where  the 
title  is  merely  doubtful  is  concerned,  are  Walton  v.  Meeks,  41  Hun  (N.  Y.), 
311,  and  Murray  v.  Harway,  56  N.  Y.  337.  The  equitable  rules  applicable 
to  a  suit  to  compel  a  vendee  to  perform  his  contract,  are  applicable  to  an 
action  at  law  by  him  to  recover  back  the  purchase  money  on  the  ground  that 
the  title  is  insufficient.  Moore  v.  Williams,  115  N.  Y.  586;  22  N.  E.  Rep.  233; 
Methodist  E.  C.  Home  v.  Thompson,  108  N.  Y.  618;  15  N.  E.  Rep.  193; 
Burwell  v.  Jackson,  9  N.  Y.  335;  Warren  v.  Banning,  21  N.  Y.  Supp.  883. 
A  suit  to  recover  purchase  money  on  articles  of  agreement  is  in  the  nature  of 
a  bill  for  specific  performance;  hence,  where  the  title  to  the  land  is  doubtful 
or  not  marketable,  the  plaintiff  cannot  be  allowed  to  recover.  Murray  v. 
Ellis,  112  Pa.  St.  492;  3  Atl.  Rep.  845;  Hertzberg  v.  Irwin,  11  Norris  (Pa.), 
48.  The  defense  of  doubtful  title  is  as  available  in  an  action  by  the  vendor  to 
recover  the  purchase  money,  as  it  would  be  in  a  suit  by  him  for  specific  per- 
formance. Reynolds  v.  Strong,  82  Hun  (N.  Y.),  202;  31  N.  Y.  Supp.  329. 
Ladd  v.  Weiskopf,  62  Minn.  29;  64  N.  W.  Rep.  99.  Whatever  absolves  a 
purchaser  in  equity  from  his  obligation  to  complete  the  contract,  will  dis- 
charge him  at  law.  Taylor  v.  Williams,  (Colo.)  31  Pac.  Rep.  505.  Schroeder 
v.  Witham,  66  Cal.  636;  6  Pac.  Rep.  737. 

w  It  is  so  provided  in  Virginia,  Code,  1887,  §  3299. 


OF   DOUBTFUL   TITLES.  719 

of  the  property  or  for  breach  of  contract  in  refusing  to  accept  the 
title,  may  set  up  as  a  defense,  the  fact  that  the  title  is  so  doubtful 
that  a  court  of  equity  would  not  compel  him  to  accept  it  upon  a  bill 
for  specific  performance.  In  such  of  the  States  as  have  no  statute 
admitting  equitable  defenses  at  law,  it  is  presumed  that  the  com- 
mon law  is  in  full  force,  and  that  a  purchaser  must  seek  his  relief 
in  equity  by  suit  for  rescission,  or  injunction  against  the  vendor's 
action  at  law,  in  a  case  where  the  title  is  doubtful. 

While,  as  we  have  seen,  under  modern  systems  of  procedure,  the 
purchaser  may  avail  himself  at  law  of  the  objection  or  defense  that 
the  title  is  doubtful  or  unmarketable  though  not  absolutely  bad,  the 
better  opinion  seems  to  be  that  he  cannot,  in  an  action  for  breach  of 
the  contract,  recover  damages  for  the  loss  of  his  bargain,  that  is, 
damages  beyond  the  consideration  money,  interest,  costs  and  ex- 
penses, unless  he  can  show  that  the  title  is  absolutely  bad.88  Prac- 
tically the  distinction  is  of  little  value,  except  in  cases  in  which  the 
contract  fixes  a  sum  as  liquidated  damages,  and  except  in  those 
jurisdictions  in  which  the  purchaser  is  allowed  damages  for  the  loss 
of  his  bargain ;  for  the  generally  prevailing  rule  is  that  in  an  action 
for  breach  of  the  contract  upon  a  failure  of  the  title,  the  purchaser 
cannot,  in  the  absence  of  fraud,  recover  damages  for  the  loss  of  his 
bargain. 

"•Ingalls  v.  Hahn,  47  Hun  (N.  Y.),  104,  which  was  an  action  to  recover 
back  purchase  money  paid,  and  also  to  recover  a  certain  sum  as  liquidated 
damages  provided  for  in  the  contract.  The  court  said :  "  The  nature  of  this 
action  should  be  kept  in  mind  lest  the  principles  governing  it  be  confounded 
with  those  relating  to  actions  of  a  different  character.  This  is  not  an  action 
to  require  the  vendee  to  specifically  perform  his  contract  by  accepting  the 
title  offered.  Nor  is  it  an  action  by  the  vendee  asking  that  a  court  of  equity 
relieve  him  from  his  contract  upon  the  ground  that  the  title  offered  is  not 
free  from  reasonable  doubt.  This  is  an  action  at  law  to  recover  damages 
for  a  breach  of  the  covenants  set  forth.  In  such  an  action  the  party  bring- 
ing it  must  satisfy  the  court  that  the  title  offered  is  absolutely  bad.  It  will 
not  be  sufficient  to  show  that  it  is  doubtful.  Romilly  v.  James,  6  Taunt. 
263;  Boyman  v.  Gutch,  7  Bing.  379;  Camfield  v.  Gilbert,  4  Esp.  221.  O'Reilly 
v.  King,  2  Rob.  (N.  Y.)  587;  M.  E.  Church  Home  v.  Thompson,  20  J.  t  8. 
(N.  Y.)  321;  Bayliss  v.  Stinson,  21  J.  A  S.  (N.  Y.)  225.  Roberts  v.  Mc- 
Fadden,  (Tex.  Civ.  App.)  74  S.  W.  Rep.  105,  citing  the  text.  To  enable  the 
plaintiff  to  maintain  this  action  the  law  requires  that  the  defendant  should 
be  proved  to  have  been  in  default  in  the  performance  of  his  agreement.  That 
could  only  be  done  by  proof  that  the  defendant  did  not  own  the  property; 
that  there  were  liens  or  incumbrances  upon  it,  or  that  he  had  refused  or 


720  MABKETABLE    TITLE    TO    REAL    ESTATE. 

Where  the  title  depends  upon  a  fact  which  is  left  in  doubt, 
it  has  been  said  that  a  court  of  law  will  act  upon  the  doubt  as 
well  as  a  court  of  equity.6*  Such  a  title,  however,  it  seems  would 
be  regarded  at  law  as  absolutely  bad  and  not  merely  doubtful.7* 

neglected  to  convey  after  a  tender  of  the  purchase  price  and  request  by  the 
plaintiff.  Proof  of  one  or  the  other  of  these  facts  was  necessary  to  entitle  the 
plaintiff  to  recover  the  damages  awarded.  Walton  v.  Meeks,  41  Hun  (N.  Y.), 
311,  314,  and  cases  cited;  Murray  v.  Harway,  56  N.  Y.  337,  344.  The  cases 
cited  by  the  respondent  (purchaser)  are  not  in  conflict  with  this  doctrine. 
In  an  action  in  equity  to  compel  a  specific  performance,  or  for  relief  from  a 
contract  on  the  ground  of  the  uncertainty  of  the  title  offered,  another  and 
different  rule  applies."  Of  the  cases  cited  in  the  foregoing  opinion,  in  but 
two,  it  seems,  Bayliss  v.  Stinson,  21  J.  A  S.  (N.  Y.)  225,  and  Walton  v. 
Weeks,  41  Hun  (N.  Y.),  311,  did  the  plaintiff  seek  to  recover  anything  more 
than  the  purchase  money,  interest  and  expenses.  In  so  far  as  they  tend  to 
establish  the  proposition  that  the  purchaser  cannot  recover  back  his  deposit 
unless  the  title  is  shown  to  be  absolutely  bad,  and  not  merely  doubtful,  they 
are  disapproved  in  the  more  recent  cases  of  M.  E.  Church  v.  Thompson,  108 
N.  Y.  618;  15  N.  E.  Rep.  193,  and  Moore  v.  Williams,  115  N.  Y.  586;  22 
N.  E.  Eep.  233.  It  is  to  be  observed,  however,  that  these  two  last-mentioned 
cases  do  not  in  terms  disapprove  the  proposition  that  a  purchaser  cannot  re- 
cover liquidated  damages,  or  damages  for  the  loss  of  his  bargain,  when  the  title 
is  merely  doubtful  and  not  absolutely  bad,  which  is  the  main  point  decided  in 
Ingalls  v.  Hahn,  supra.  And  in  this  case,  the  right  of  the  purchaser  to  recover 
back  his  deposit,  where  the  title  is  doubtful  only,  seems  to  be  recognized. 
In  Kralmer  v.  Adelsberger,  55  N.  Y.  Super.  Ct.  245,  which  was  an  action  to 
recover  back  purchase  money  paid,  the  title  was  held  absolutely  bad  and  not 
merely  doubtful.  Relief  at  law  on  the  ground  that  the  title  was  doubtful  or 
unmarketable,  has  been  administered  in  the  following  cases :  Hayes  v.  Nourse, 
8  N.  Y.  State  Rep.  397;  Droge  v.  Cree,  39  N.  Y.  State  Rep.  324;  14  N.  Y. 
Supp.  241;  Hemmer  v.  Hustace,  51  Hun  (N.  Y.),  457;  3  N.  Y.  Supp.  850, 
which  was  an  action  by  the  purchaser  to  recover  damages  for  a  breach  of 
contract.  Moore  v.  Appleby,  108  N.  Y.  237;  15  N.  E.  Rep.  377;  Porterfield  Y. 
Payne,  11  N.  Y.  Supp.  31;  Warren  v.  Banning,  21  N.  Y.  Supp.  883.  In  Penn- 
sylvania, the  question  whether  the  doctrine  of  marketable  title  can  be  enforced 
at  law,  cannot  arise,  because  in  that  State  there  is  no  distinction  between 
legal  and  equitable  relief,  and  an  action  to  recover  the  purchase  money  is 
treated  as  a  suit  for  specific  performance.  See  Nicoll  v.  Carr,  35  Pa.  St.  381. 
The  common-law  rule  that  the  doctrine  of  doubtful  titles  cannot  be  enforced 
at  law,  was  approved  in  Kent  v.  Allen,  24  Mo.  98.  But  in  Hymers  v.  Branch, 
6  Mo.  App.  511,  a  purchaser  was  allowed  to  recover  back  the  purchase  money 
in  an  action  at  law,  upon  the  ground  that  the  title  was  doubtful.  The  deci- 
sion in  Kent  v.  Allen,  supra,  was  not  adverted  to. 

*•  1  Sugd.  Vend.  ( 8th  Am.  ed. )  602,  citing  Gibson  v.  Spurrier,  Peake  Ad. 
Cas.  49. 

wl  Sugd.  Vend.  (8th  Am.  ed.)  597  (400).  Simmons  v.  Haseltine,  5  C.  B. 
554. 


OF    DOUBTFUL   TITLES.  721 

§    287.  INCONCLUSIVENESS  OF  JUDGMENT  OB  DECREE.     One 

of  the  principal  reasons  for  the  rule  that  a  purchaser  cannot  be 
compelled  to  take  a  doubtful  title,  is  that  the  decree  of  the  court  is 
not  binding  upon  those  whose  rights  in  the  premises  give  rise  to  the 
doubts  of  which  the  purchaser  complains,  they  not  being  parties 
to  the  suit  for  specific  performance.  They  might  raise  the  same 
question  in  a  new  proceeding,  and  a  different  court  with  different 
lights  upon  the  subject  might  pronounce  a  judgment  subversive 
of  the  title  which  the  purchaser  was  compelled  to  take.71  The  same 
observations  apply  with  equal  force  where  the  doubt  hinges  upon 
a  question  of  fact.  It  would  be  unjust  to  compel  a  purchaser  to 
take  a  title  dependent  upon  a  doubtful  question  of  fact,  when  the 
facts  presented  might  be  changed  upon  a  new  inquiry.72 

It  has  been  said  that  it  is  only  necessary,  in  determining  whether 
a  title  is  marketable,  to  ascertain  whether  or  not  there  is  some  prac- 
tical and  serious  question  affecting  the  title,  upon  which  persons 
not  parties  to  the  suit,  and  who  cannot  be  estopped  by  the  judgment, 
have  a  right  to  be  heard  in  some  future  litigation.73  On  questions 

/ 

"Post,  §  299.     Pyrke  v.  Waddingham,  10  Hare,  1.     Morgan  v.  Morgan,  2 

Wh.  (U.  S.)  290.  Irving  v.  Campbell,  121  N.  Y.  353;  24  N.  E.  Rep.  821; 
Abbott  v.  James,  111  N.  Y.  673;  19  N.  E.  Rep.  434;  Kilpatrick  v.  Barren, 
125  N.  Y.  751;  26  N.  E.  Rep.  925;  Fisher  v.  Wilcox,  77  Hun  (N.  Y.),  208; 
Felix  v.  Devlin,  86  N.  Y.  Supp.  12;  90  App.  Div.  103;  Downey  v.  Seib,  92  N. 
Y.  Supp.  431;  102  App.  Div.  317.  Boylan  v.  Townley,  62  N.  J.  Eq.  591;  51 
Atl.  116.  Wollenberg  v.  Rose,  (Oreg.)  78  Pac.  Rep.  751.  Zimmerman  v. 
Owen,  (Tex.  Civ.  App.)  77  S.  W.  Rep.  971.  Lockhart  v.  Smith,  47  La.  Ann. 
121;  16  So.  Rep.  660.  In  Doebler's  Appeal,  14  P.  F.  Smith  (Pa.),  9,  the 
vendor  contended  that  he  took  a  fee  under  the  will ;  the  purchaser  insisted 
that  the  vendor  took  a  life  estate;  the  court  at  nisi  prius  was  of  the  opinion 
that  he  took  an  estate  tail,  while  the  appellate  court  decided  that  he  took  a 
fee.  But  this  last  court  refused  to  compel  the  purchaser  to  accept  the  title, 
since  its  decision  was  in  no  way  binding  upon  those  who  might  set  up  a 
claim  in  tail  or  in  remainder.  In  Sohier  v.  Williams,  1  Curt.  C.  C.  (U.  S.) 
479,  a  testatrix  empowered  a  trustee  to  sell  lands  devised  "  when  the  major 
part  of  my  children  shall  recommend  and  advise  the  same."  The  court  was  of 
the  opinion  that  the  consent  of  the  major  part  of  the  children  living  irhrn  the 
power  was  to  be  exercised  was  sufficient  to  authorize  a  sale,  but  considered 
the  question  so  doubtful,  that,  but  for  the  fact  that  all  parties  in  interest 
were  before  the  court  and  would  be  bound  by  its  decree,  the  purchaser  would 
have  been  excused  the  performance  of  the  contract. 

"Flemming  v.   Burnham,    100   N.   Y.    10:    2  N.    E.   Rep.   905;    Vought  v. 
Williams,   120  N.  Y.  253;  24  N.  E.  Rep.  195. 

nArgall  v.  Raynor,  20  Hun    (N.  Y.),  267. 
46 


722  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

of  title  depending  on  the  possibility  of  future  rights  arising,  the 
court  must  consider  the  course  which  should  be  taken  if  those  rights 
had  actually  arisen,  and  were  in  course  of  litigation.74  But  if  all 
parties  in  interest  are  before  the  court  the  objection  that  the  title 
is  doubtful,  if  dependent  upon  a  question  of  law,  cannot  be  made, 
because  the  court  is  bound  to  decide  the  question,  and  its  decision 
when  made  will  be  conclusive  upon  the  parties.76  It  is  to  be  ob- 
served in  this  connection,  that  the  rule  which  forbids  the  adjudica- 
tion of  a  question  of  title,  where  all  the  parties  in  interest  are  not 

74Pyrke  v.  Waddingham,  10  Hare,  1.  Sohier  v.  Williams,  1  Curt.  C.  C. 
(U.  S.)  479.  Ebling  v.  Dwyer,  149  N.  Y.  460;  44  N.  E.  Rep.  155.  Mr.  Frj 
in  his  learned  treatise  on  Specific  Performance  (§  862),  speaking  of  the 
doctrine  of  marketable  titles  in  suits  for  specific  performance,  and  defending 
it,  says:  "It  must  be  remembered  that  the  judgment  of  the  court  in  such 
an  action  is  in  personam  and  not  in  rem;  that  it  binds  only  those  who  are 
parties  to  the  action  and  those  claiming  through  them,  and  in  no  way  decides 
the  question  in  issue  as  against  the  rest  of  the  world  (Osborne  v.  Rowlett,  13 
Ch.  D.  781),  and  that  doubts  on  the  title  of  an  estate  are  often  questions 
liable  to  be  discussed  between  the  owner  of  the  estate  and  some  third  person 
not  before  the  court,  and,  therefore,  not  bound  by  its  decision.  Glass  T. 
Richardson,  9  Ha.  701.  If,  therefore,  there  be  any  reasonable  chance  that 
some  third  person  may  raise  a  question  against  the  owner  of  the  estate  after 
the  completion  of  the  contract,  the  court  may  consider  this  to  be  a  circum- 
stance which  renders  the  bargain  a  hard  one  for  the  purchaser,  and  one  which 
in  the  exercise  of  its  discretion,  it  will  not  compel  him  to  execute.  Though 
every  title  must  in  itself  be  either  good  or  bad,  there  must  be  many  titles 
which  the  courts  cannot  pronounce  with  certainty  to  belong  to  either  of  these 
categories  in  the  absence  of  the  parties  interested  in  supporting  both  alter- 
natives, and  without  having  heard  the  evidence  they  might  have  to  produce, 
and  the  arguments  they  might  be  able  to  urge ;  and  it  is  in  the  absence  of 
these  parties  that  the  question  is  generally  agitated  in  proceedings  for  specific 
performance.  The  court  when  fully  informed  must  know  whether  a  title 
be  good  or  bad;  when  partially  informed,  it  often  may  and  ought  to  doubt.'' 
The  reasoning  of  the  learned  author  is  satisfactory  so  far  as  it  applies  to 
a  case  where  the  doubt  as  to  the  title  turns  upon  facts  as  to  which  the 
court  is  not  informed,  but  does  not  appear  to  reach  cases  where  the  doubt 
turns  upon  a  mere  question  of  law,  the  court  being  at  all  times  presumed  to 
know  the  law. 

"Chesman  v.  Cummings,  142  Mass.  65;  7  N.  E.  Rep.  13,  citing  Sohier  v. 
Williams,  1  Curt.  (C.  C.)  479.  Butts  v.  Andrews,  136  Mass.  221.  Cornell 
v.  Andrews,  8  Stew.  (N.  J.  Eq.)  7 ;  9  id.  321.  Gills  v.  Wells,  59  Md.  492. 
People  v.  Stock  Brokers'  Building  Co.,  92  N.  Y.  98.  Going  v.  Oakland,  etc., 
Soc.,  17  Mich.  230;  75  N.  W.  Re>  462;  Ladd  v.  Weiskopf,  62  Minn.  29;  64 
N.  W.  Rep.  99;  Matthews  v.  Lightner,  85  Minn.  333;  88  N.  W.  Rep.  992. 


OP   DOUBTFUL  TITLES.  723 

before  the  court,  does  not  apply  as  between  vendor  and  purchaser, 
when  the  objection  is  made  that  the  title  is  defective,76  though,  of 
course,  the  rights  of  persons  not  before  the  court  cannot  be  con- 
cluded by  such  an  adjudication.  The  uncertainty  as  to  what  judg- 
ment another  court  may  render  upon  the  same  state  of  facts  or 
question  of  law  is  that  which  makes  the  title  doubtful. 

In  some  of  the  American  States,  under  modern  systems  of  civil 
procedure  in  which  legal  and  equitable  relief  are  administered  in 
one  and  the  same  form  of  action,  the  purchaser,  when  sued  for  the 
purchase  money,  or  the  vendor,  when  the  purchaser  objects  that 
the  title  is  doubtful,  is  permitted  to  bring  in,  as  parties,  all  persons 
who  could,  if  such  objection  be  well  founded,  assert  an  adverse 
interest  in  the  premises,  so  that  the  court  may  pronounce  a  judg- 
ment or  decree  in  respect  to  the  matter  in  controversy,  which  will 
be  final  and  conclusive  upon  all  parties  in  interest,77  except,  of 
course,  such  as  are  not  sui  juris.  In  those  States  in  which  the  sep- 
arate equitable  jurisdiction  is  maintained,  no  reason  is  "perceived 
why  the  vendor  should  not  be  permitted  to  adopt  such  a  course  in 
any  case  in  which  he  might  maintain  a  bill  to  quiet  his  title 
as  against  an  adverse  claimant. 

In  a  case  in  which  the  vendor,  claiming  under  a  tax  deed,  had 
obtained  a  judgment  quieting  his  title  against  certain  persons 
having  vested  interests  under  a  deed  by  which  contingent  interest* 
in  others  were  created,  it  was  held  that  such  judgment  was  binding 
not  only  upon  the  defendants,  having  vested  interests  in  the  estate, 
but  upon  persons  not  then  in  being  who  might  afterwards  become 
entitled  in  remainder;  and,  hence,  that  the  existence  of  such  con- 

'•Lockman  v.  Eeilly,  10  Abb.  N.  Cas.  (N.  Y.)  351. 

"Cooper  v.  Singleton,  19  Tex.  267;  70  Am.  Dec.  333,  diet.;  Estell  v.  Cole, 
52  Tex.  170.  See  the  case  of  Batchelder  v.  Macon,  67  N.  C.  181,  where,  in  an 
action  for  the  purchase  money,  the  court,  under  a  provision  of  the  Code  of 
Civil  Procedure  authorizing  it  to  direct  new  parties  to  be  brought  in  when 
necessary  to  a  complete  determination  of  any  question  in  controversy,  ordered 
that  persons  out  of  whose  alleged  interest  in  the  premises  the  doubts  as  to 
the  title  arose,  be  made  parties  to  the  suit.  Simpson  v.  Hawkins,  1  Dana 
(Ky.),  303;  Harris  v.  Smith,  2  Dana  (Ky.),  11,  12;  Denny  v.  Wickliff.  1  Met. 
(Ky.)  216.  See,  also,  Story  Eq.  Pi.  §  72,  for  general  principles  applicable 
to  this  point.  The  purchaser,  it  seems,  may  bring  in  third  parties  in  order 
to  clear  up  the  title,  but  it  is  not  incumbent  on  him  to  do  BO;  that  is  the 
vendor's  duty.  Prewitt  v.  Graves,  5  J.  J.  Marsh.  (Ky.)  114,  126. 


724  MAEKETABLE    TITLE    TO    EEAL    ESTATE. 

tingent  interests  did  not  render  the  title  of  the  vendor  unmarket- 
able.78 

§  288.  SPECIAL  AGREEMENTS  RESPECTING  THE  TITLE.  The 
right  of  a  purchaser  to  reject  a  doubtful  title  depends,  of  course, 
upon  the  terms  of  his  contract.79  He  will  have  no  such  right  if  he 
has  agreed  to  accept  the  title  such  as  it  is.80  On  the  other  hand,  the 
vendor  cannot  resort  to  parol  evidence  to  remove  doubts  about  the 
title,  if,  by  the  contract,  he  is  to  furnish  a  "  good  title  of  record,"81 
nor  if  he  obliges  himself  to  deliver  an  abstract  showing  a  good 
title,82  nor  if  he  contracts  in  express  terms  that  the  title  shall  be  free 

78  Matthews  v.  Lightner,  85  Minn.  333 ;  88  N.  W.  Rep.  992. 

79  Ante,  §  6.    A  stipulation  that  the  title  shall  be  "  first  class,"  means  simply 
that  it  shall  be  marketable.    Vought  v.  Williams,  120  N.  Y.  253;  24  N.  E.  Rep. 
195.     "  If  title  on  examination  be  found  insufficient,"  in  a  contract  of  sale, 
means  if  title  be  found  unsatisfactory,  and  not  absolutely  bad.    Per  ROBINSON, 
C.  J.     O'Reilly  v.  King,  28  How.  Pr.   (N.  Y.)   408,  415. 

80  Ante,  §   11.  Hume  v.  Pocock,  L.  R.,  1  Eq.  423,  662.     Brown  v.  Haff,  5 
Paige    CN.-Y.),  234,  241.     Crawley  v.  Timberlake,  2  Ired.  Eq.    (N.  C.)   460, 
dictum.     Powell  v.  Conant,  33  Mich.   396.     An  agreement  by   assignees   in 
bankruptcy,  who  had  a  defective  title,  that  the  purchaser  should  have  an 
assignment  of  the  bankrupt's  interest  under  such  title  as  he  lately  held  the 
»ame,  was  held  to  be  sale  of  only  such  title  as  the  assignees  had.     Freme  T. 
Wright,  4  Madd.  364;   Molloy  v.   Sterne,   1  Dru.  &  Wai.  585;  Lethbridgc  T. 
Kirkman,  25  L.  J.  (N.  S.)  89;  Phipps  v.  Child,  9  Drew.  709;  Taylor  v.  Martin- 
dale,  1  Y.  &  Coll.  C.  C.  658;  Nouaille  v.  Flight,  7  Beav.  521.    An  agreement 
to  sell  two  leases  and  the  trade,  as  the  seller  held  the  same,  for  the  term, 
and  that  the  purchaser  should  accept  the  assignment  without  requiring  the 
lessor's  title,  held  to  prevent  the  purchaser  from  objecting  to  the  lessor'i 
title. 

"Coray  v.  Matthewson,  7  Lans.  (N.  Y.)  80.  Page  v.  Greely,  75  111.  400. 
Sheehy  v.  Miles,  93  Cal.  288;  28  Pac.  Rep.  1046;  Benson  v.  Shotwell,  87  Cal. 
49;  25  Pac.  Rep.  249.  In  Jones  v.  Hanna,  (Tex.  Civ.  App.)  60  S.  W.  Rep. 
279,  it  was  held  that  a  purchaser,  who  had  merely  contracted  for  a  good 
title  "  of  record,"  could  not  object  to  the  title  on  the  ground  of  facts  dis- 
qualifying a  notary  to  take  an  acknowledgment  of  a  deed  in  the  vendor's 
chain  of  title,  inasmuch  as  the  record  itself  showed  a  good  title,  and  the 
objection  was  founded  on  matter  dehors  the  record.  The  decision  seems 
questionable;  the  same  reasoning  would  prevent  an  objection  to  a  deed  in  the 
chain  of  title  on  the  ground  of  lunacy,  infancy,  or  other  disqualification  of 
the  grantor. 

s:In  Smith  v.  Taylor,  82  Cal.  534;  23  Pac.  Rep.  217,  it  was  held  that  the 
only  fair  interpretation  of  a  contract  providing  that  an  abstract  of  title  should 
be  delivered  by  the  vendor,  the  title  to  prove  good,  or  no  sale,  and  purchase 
money  paid  to  be  refunded,  was,  that  a  full  abstract  should  be  furnished 
showing  a  good  title  on  its  face,  and  that  if  such  abstract  did  not  show  a  good 


OF   DOUBTFUL   TITLES.  725 

from  incumbrances."  If  the  contract  provides  that  the  abstract 
shall  show  a  marketable  title,  the  vendor  will  not  be  permitted  to 
show  by  evidence  aliunde  that  the  title  is  good,M  nor  will  the  pur- 
chaser be  required  to  go  outside  of  the  abstract  in  examining  the 
title.85 

If  the  conditions  of  sale  provide  that  the  purchaser  shall  have 
time  to  examine  the  title,  and  that  if  he  be  not  satisfied  with  it,  he 
shall  not  be  required  to  complete  the  purchase,  the  purchaser  may 
abandon  the  contract  if  he  be  in  good  faith  dissatisfied  with  the 
title,  and  specific  performance  will  not  be  decreed  against  him, 
though  the  court  be  of  the  opinion  that  the  title  was  good.86  An 
agreement  that  the  title  shall  be  satisfactory  to  the  purchaser'^ 

record  title,  the  purchaser  should  not  be  bound  to  make  any  investigation 
outside  of  the  abstract  or  to  take  the  chances  of  any  litigation  which  the 
abstract  showed  to  be  either  pending  or  probable,  and  that  evidence  aliunde 
was  not  admissible,  in  an  action  to  recover  back  the  purchase  money  paid, 
to  show  that  the  claims  of  persons  who  appeared,  by  the  abstract  of  title, 
to  be  asserting  adverse  title  to  the  land,  and  who  had  suits  pending  in 
respect  thereto,  were  groundless.  Taylor  v.  Williams,  2  Colo.  App.  559:  31 
Pac.  Rep.  504. 

"Evans  v.  Taylor,  177  Pa.  St.  286;  35  Atl.  Rep.  635. 

"Parker  v.  Porter,   11   111.  App.  602. 

"Horn  v.  Butler,  39  Minn.  515;  40  N.  W.  Rep.  833,  dictum. 

86  Swain  v.  Burnette,  89  Cal.  564;  26  Pac.  Rep.  1093.  Averett  v.  Lips- 
combe,  76  Va.  404.  In  this  case  the  auctioneer  had  announced  at  the  sale 
that  any  purchaser  should  have  the  right  to  examine  the  title,  and  if  he  was 
not  satisfied  with  it  he  should  not  be  required  to  comply  with  the  terms  of 
the  sale.  BURKS,  J.,  delivering  the  opinion  of  the  court,  said:  "  It  is  imma- 
terial that  this  court  now  considers  that  the  vendors  were  and  are  able  to 
make  good  title.  That  is  not  the  question.  The  contract  left  it  to  the 
purchaser  to  determine  for  himrelf  the  matter  of  title.  If,  on  examination, 
he  was  not  in  good  faith  satisfied  with  the  title  he  was  not  to  be  bound.  The 
bargain  was  at  an  end."  Citing  Williams  v.  Edwards,  2  Sim.  78.  See,  also. 
Watts  v.  Holland,  86  Va.  909;  11  S.  E.  Rep.  1015;  Gish  v.  Moomaw,  (Va.) 
17  S.  E.  Rep.  324.  Giles  v.  Paxson,  40  Fed.  Rep.  283,  where  the  subject  is 
considered  at  length.  Where  the  contract  provides  "  title  on  investigation  to 
be  satisfactory"  the  purchaser  must  investigate  for  himself,  and  in  due  time 
declare  his  determination.  Taylor  v.  Williams,  45  Mo.  80.  When  the  vendor 
refuses  to  perfect  the  title,  insisting  that  he  sold  only  such  title  as  he  had, 
but  the  contract  provided  that  the  title  should  be  satisfactory  to  the  pur- 
chaser, the  court  will  not  undertake  to  determine  whether  his  objection  to  the 
title  were  well-founded;  he  may  declare  the  title  unsatisfactory  and  refuse 
to  complete  the  contract.  Boyd  v.  Woodbury  Co.,  122  Iowa,  455;  98  N.  W. 
Rep.  274. 


726  MARKETABLE    TITLE    TO    REAL    ESTATE. 

attorney  will  justify  the  purchaser  in  rescinding  the  contract  if  the 
attorney  in  good  faith,  and  not  capriciously,  declare  himself  dis- 
satisfied with  the'  title.87  If  the  parties  agree  that  the  contract 
shall  be  void  and  the  purchase  money  returned  if  the  purchaser's 
counsel  shall  be  of  opinion  that  the  title  is  bad,  and  the  counsel  pro- 
nounce against  the  title,  the  purchaser  may  reject  it,  even  though 
the  vendor  be  able  to  remove  the  objections.88  But  such  an  opinion 
will  not  sustain  an  action  against  the  purchaser  for  breach  of  the 
contract ;  he  must  show  the  title  to  be  bad.89 

On  the  other  hand,  an  agreement  that  the  title  shall  be  satisfac- 
tory to  the  purchaser  has  been  construed,  in  effect,  to  mean  that  the 
title  shall  be  such  as  he  should  be  satisfied  with,  and  that  such  an 
agreement  does  not  authorize  him  to  make  capricious  or  unreason- 
able objections,90  nor  constitute  him  the  sole  judge  of  the  sufficiency 

w  Church  v.  Shanklin,  95  Cal.  626;  30  Pac.  Rep.  789.  Leach  v.  Rowley,  138 
Cal.  709 ;  72  Pac.  Rep.  403.  A  contract  provided  that  the  vendor's  title  should 
he  satisfactory  to  the  purchaser's  attorneys.  After  the  abstract  was  furnished 
the  attorneys  made  certain  requisitions  which  were  promptly  honored  at  a 
considerable  expense  to  the  vendor,  and  the  attorneys,  by  implication,  ex- 
pressed themselves  as  satisfied  with  the  title.  HeFd,  that  the  attorneys  could 
not  thereafter  arbitrarily  and  abruptly  declare  the  title  unsatisfactory  and 
the  contract  at  an  end.  Boyd  v.  Hallowell,  (Minn.)  62  N.  W.  Rep.  125. 
Where  the  agreement  was  that  the  title  should  be  satisfactory  to  a  certain 
title  insurance  company  it  was  said  that  if  the  title  insurance  company 
reported  the  title  imperfect  the  purchaser  could  recover  his  deposit.  Pres- 
brey  v.  Kline,  20  D.  C.  513,  529.  But,  contra,  in  a  case  in  which  the  report 
of  the  title  company  was  founded  on  a  mistake  of  fact.  Hoffman  v.  Colgan, 
25  Ky.  Law  R.  98;  74  S.  W.  Rep.  724.  It  is  competent  for  the  parties  to 
contract  that  the  title  shall  be  such  as  would  be  pronounced  good  and  mer- 
chantable by  any  reputable  attorney  in  a  named  city.  Ellis  v.  Lockett,  100 
Ga.  719;  28  S.  E.  Rep.  452. 

"Delafield  v.  James,  18  Abb.  Pr.  (N.  Y.)  221;  27  How.  Pr.  357,  citing 
Williams  v.  Edwards,  3  Sim.  78;  2  Eng.  Ch.  Rep.  79.  See  Thompson  T. 
Avery,  (Utah)  39  Pac.  Rep.  829. 

••1  Sugd.  Vend.   (8th  Am.  ed.)  537.    Canfield  v.  Gilbert,  4  Esp.  221. 

80 Dart's  Vend.  (5th  ed.)  158,  where  it  is  said  that  such  an  agreement  means 
that  the  title  shall  be  marketable.  Lord  v.  Stevens,  1  Yo.  &  Coll.  Ex.  222. 
Folliard  v.  Wallace,  2  Johns.  (N.  Y.)  395;  Moot  v.  Business  Men's  Asso.,  157 
N.  Y.  201;  52  N.  E.  Rep.  1.  Fagan  v.  Davison,  2  Duer  (N.  Y.),  153.  Kirk- 
land  v.  Little,  41  Tex.  456.  Taylor  v.  Williams,  45  Mo.  80.  Where  the  con- 
tract provides  that  the  vendor  shall  give  and  the  purchaser  accept  such  title 
as  a  certain  title  company  should  approve,  and  the  company  disapproves  the 
title  offered,  the  vendor  will  not  be  permitted  to  show  that  the  title  is  mar- 
ketable unless  approval  by  the  company  was  prevented  by  the  vendee.  Flan- 


OF    DOUBTFUL   TITLES.  727 

of  the  title,91  nor  deprive  the  vendor  of  the  right  to  perfect  the  title 
where  time  is  not  of  the  essence  of  the  contract,92  nor  justify  the 
purchaser  in  rejecting  the  title  by  a  simple  expression  of  dissatis- 
faction.93 The  dissatisfaction  of  the  purchaser  must  be  founded 
upon  a  valid  and  legal  objection.94  Of  course  the  parties  may  con- 
tract if  they  choose,  that  the  purchaser  may  abandon  the  sale  ar- 
bitrarily and  without  assigning  reasons  therefor,  but  such  a  con- 
struction will  not  be  given  to  the  agreement  that  the  title  shall  be 
satisfactory  to  the  purchaser,  agreeably  to  the  maxim  ut  res  mngis 
valeat  quam  pereat. 

An  agreement  to  furnish  a  correct  and  satisfactory  abstract 
does  not  mean  merely  an  abstract  which  correctly  and  satisfactorily 
shows  the  state  of  the  record  title.  Hence,  the  abstract  is  insuffi- 
cient if  it  shows  the  title  to  be  outstanding  in  a  stranger.95  In  a 
case  in  which  the  parties  placed  the  vendor's  deed  and  the  pur- 
chaser's notes  in  the  hands  of  a  custodian  to  be  delivered  when  the 
vendor  furnished  evidence  of  title  satisfactory  to  the  custodian, 
and  the  vendor  failed  to  inform  the  custodian  of  the  existence  of 
an  attachment  lien  on  the  property,  it  was  held  that  the  vendor 
could  not  compel  specific  performance  on  the  ground  that  the  cus- 
todian had  expressed  himself  as  satisfied  with  the  title.96  Where 
the  vendor  agreed  to  give,  and  the  vendee  to  accept,  such  a  title 
as  would  be  satisfactory  to  a  certain  title  insurance  company,  and 
the  company  expressed  a  willingness  to  insure  the  title,  it  was  held 

nigan  v.  Fox,  26  N.  Y.  Supp.  48;  6  Misc.  Rep.  132.  See,  generally,  upon  the 
proposition  that  a  contract  to  do  a  thing  to  the  satisfaction  of  another  must 
be  given  a  reasonable  construction,  and  that  such  person  cannot  arbitrarily 
declare  himself  dissatisfied  with  the  performance.  Thomas  v.  Fleming,  26 
N.  Y.  33 ;  Brooklyn  City  v.  Brooklyn  City  R.  Co.,  47  N.  Y.  475 ;  7  Am.  Rep. 
469 ;  Bowery  Nat.  Bank  v.  Mayor,  63  N.  Y.  336 ;  Miesell  v.  Ins.  Co.,  76  N.  Y. 
115;  Boiler  Co.  v.  Gorden,  101  N.  Y.  387;  4  N.  E.  Rep.  749;  Dill  v.  Noble, 
116  N.  Y.  230;  22  N.  E.  Rep.  406. 

"Folliard  v.  Wallace,  2  Johns.  (N.  Y.)  395,  per  KENT,  Ch.;  Regney  T. 
Coles,  6  Bosw.  (N.  Y.)  479. 

94  Anderson  v.  Strasberger,  92  Cal.  38;  27  Pac.  Rep.  1095. 

M  Beardslee  v.  Underbill,  37  N.  J.  L.  309.  Curtis  v.  Hawley,  85  111.  App, 
429. 

"Kirkland  v.  Little,  41  Tex.  456. 

95  Curtis  v.  Hawley,  85  111.  App.  429. 

"Wolcott  v.  Johns.,  7  Colo.  App.  360;  44  Pac.  675. 


728  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

that  the  vendee  could  not  thereafter  insist  on  an  objection  to  the 
title.97 

Where  the  contract  provided  that  the  purchaser  should  be  the 
exclusive  judge  of  the  sufficiency  of  the  title,  it  was  held  the  right 
thereunder  to  pass  upon  and  reject  the  title,  in  good  faith,  passed 
to  an  assignee  of  the  purchaser.98 

Stipulations  which  exclude  the  right  of  the  vendee  to  call  for  a 
perfect  title,  must  be  clear  and  explicit.  Where  no  title  whatever 
can  be  given,  a  court  of  equity  will  not  compel  specific  performance 
by  the  vendee  merely  because  of  a  stipulation  by  him  that  there 
should  be  no  objection  to  the  title.99 

§  289.  PAROL  EVIDENCE  TO  REMOVE  DOUBTS.  It  has  been 
frequently  held  that  if  parol  evidence  should  be  necessary  to  remove 
any  doubt  as  to  the  validity  and  sufficiency  of  the  vendor's  title,  the 
purchaser  cannot  be  compelled  to  complete  the  contract.1  He  can- 
not be  required  to  take  a  doubtful  title  which  he  must  fortify,  if 
impugned,  by  resorting  to  evidence  perishable  in  its  nature,  and 
possibly  unavailable  to  him  when  the  necessity  for  it  occurs.2  It 
must  be  observed,  however,  that  a  title  is  not  necessarily  doubtful 
simply  because  it  requires  to  be  supported  by  parol  testimony.  As 
a  general  rule,  for  example,  title  by  inheritance  depends  principally 
upon  matters  in  pais,  or  facts  resting  in  the  knowledge  of  witnesses. 

97  Pope  v.  Thrall,  68  N.  Y.  Supp.  137 ;  33  Misc.  Rep.  44. 

MN.  Y.  Life  Ins.  Co.  v.  Gilhooly,  61  N.  J.  Eq.  118;  47  Atl.  494. 

99  Simmons  v.  Zimmerman,  144  Cal.  256;  79  Pac.  Rep.  451. 

*2  Beach  Mod.  Eq.  Jur.  §  608.  Seymour  v.  Delancey,  1  Hopk.  (N.  Y.)  436; 
14  Am.  Dec.  552;  Moore  v.  Williams,  115  N.  Y.  586;  22  N.  E.  Rep.  233; 
Irving  v.  Campbell,  121  N.  Y.  353;  24  N.  E.  Rep.  821.  McPherson  v.  Schade, 
149  N.  Y.  16;  43  N".  E.  Rep.  527;  Holly  v.  Hirsch,  135  N.  Y.  590;  32  N.  E. 
Rep.  709.  Blanck  v.  Sadlier,  153  N.  Y.  556;  47  N.  E.  Rep.  921.  A  purchaser 
cannot  be  compelled  to  accept  a  title  dependent  upon  an  estoppel  in  pais. 
Mullins  v.  Aiken,  2  Heisk.  (Tenn.)  535;  Topp  v.  White,  12  Heisk.  (Tenn.) 
165.  Where  the  question  was  whether  certain  testimony  sufficient!}  estab- 
lished the  execution  of  a  deed  which  would  supply  a  missing  link  in  the  chain 
of  title,  the  title  was  held  unmarketable.  Griffin  v.  Cunningham,  19  Grat. 
(Va. )  571.  So,  also,  where  parol  proof  of  a  waiver  of  a  covenant  not  to 
assign  a  lease  was  necessary.  Murray  v.  Harway,  56  N.  Y.  337. 

2  2  Beach  Mod.  Eq.  Jur.  §  608.  In  the  case  of  Fahy  v.  Cavanagh,  59  N.  J. 
Eq.  278 ;  44  Atl.  Rep.  154,  the  question  was  whether  a  will  had  been  properly 
executed  —  a  fact  which  could  be  proven  only  by  the  testimony  of  the  two 
subscribing  witnesses.  The  title  depended  entirely  and  exclusively  upon  what 
their  testimony  might  be,  and  this  was  held  to  render  the  tftle  unmarketable. 


OF    DOUBTFUL   TITLES.  729 

If  those  facts  be  clearly  sufficient  to  establish  the  right  of  the  ven- 
dor as  heir,  it  is  apprehended  that  the  purchaser  could  not  object 
to  the  title  simply  because  it  could  not  be  established  by  record 
evidence.3  But  a  different  case  is  presented  where  the  fact  of  in- 
heritance itself  is  in  doubt.  There  may  be  circumstances  to  show 
that  the  ancestor  is  not  dead,  or  that  he  has  left  a  will,  or  that  the 
vendor  is  not  sole  heir.  Then  it  is  that  the  title  becomes  unmar- 
ketable from  the  necessity  of  parol  proof  to  remove  the  doubts 
which  surround  it.  The  court  must  determine  in  each  case  whether 
the  circumstances  alleged  are  sufficient  to  create  a  reasonable  doubt 
as  to  the  existence  of  the  fact  or  facts  upon  which  the  validity 
of  the  title  depends. 

It  has  been  frequently  held  that  a  sale  of  lands  implies  a  contract 
on  the  part  of  the  vendor  that  the  title  shall  be  fairly  deducible  of 
record.4  It  has  also  been  held  that  a  purchaser  cannot  be  required 
to  accept  a  title  which  he  cannot,  by  the  record,  show  to  be  valid  if 
attacked.5  Both  of  these  statements  are  to  be  qualified,  it  is  appre- 
hended, to  this  extent,  namely,  that,  in  those  States  in  which  tho 
registration  of  deeds  is  necessary  to  their  validity,  the  vendor  need 
only  show  a  prima  facie  valid  record  title.6  The  record  title  may 
be  apparently  perfect,  though  in  fact  worthless,  for  some  con- 
veyance in  the  vendor's  claim  of  title  may  have  been  inoperative 
to  pass  the  title  by  reason  of  the  infancy,  coverture  or  lunacy  of 
the  grantor,  or  for  some  other  reason  which  the  record  would  not 
disclose;  yet  it  would  hardly  be  contended  that  the  vendor  must 

'See  2  Sugd.  Vend.  (8th  Am.  ed.)  24  (425),  where  it  is  said:  "If,  on  the 
face  of  the  abstract,  the  vendor  has  shown  a  sixty  years'  title,  and  if,  for  the 
purpose  of  supporting  that  title,  it  is  necessary  to  show  that  such  a  person 
died  intestate,  or  any  other  fact, —  if  the  facts  are  alleged  with  sufficient 
specification  on  the  abstract  —  then  that  abstract  shows  a  pood  title,  although 
the  proof  of  the  matters  shown  may  be  the  subject  of  ulterior  investigation. 
While  it  may  not  appear  that  a  vendor  claiming  as  sole  heir  is  not  in  fact 
such,  yet,  if  it  cannot  be  made  to  appear  beyond  a  reasonable  doubt  that 
there  is  in  fact  no  other  heir  to  the  property,  the  title  will  be  held  unmar- 
ketable. Walton  v.  Meeks,  120  N.  Y.  79,  82;  23  N.  E.  Rep.  115. 

4  Turner  v.  McDonald,  76  Cal.  180;  18  Pac.  Rep.  262;  Reynolds  v.  Borel,  86 
Cal.  538;  25  Pac.  Rep.  67.  Meeks  v.  Garner,  93  Ala.  17;  8  So.  Rep.  378. 

•Calhoun  v.  Belden,  3  Bush  (Ky.),  674,  a  case  in  which  all  the  vendor's 
record  evidences  of  title  had  been  destroyed  in  a  fire  which  consumed  the 
register's  office. 

•Hollifield  v.  Landrum,  (Tex.  Civ.  App.)  71  S.  W.  Rep.  979,  citing  the  text. 


730  MABKETABLE    TITLE    TO    BEAL    ESTATE. 

show  affirmatively  the  competency  of  every  grantor  in  his  chain  of 
title,  or  the  non-existence  of  any  other  matter  in  pais  which  would 
invalidate  the  title.  Of  course,  an  unexplained  break  in  the 
record  chain  of  title  would  render  the  title  doubtful  and  such  as 
the  purchaser  could  not  be  required  to  accept.7  But  it  is  obvious 
that  such  a  break  may  be  satisfactorily  explained  so  as  to  leave 
no  imputation  upon  the  title,  as  where  the  estate  passed  by 
descent,  instead  of  purchase,  from  one  of  the  vendor's  predeces- 
sors in  title  to  another;  and  that  the  title  will  not  be  rendered 
unmarketable  by  the  fact  that  parol  evidence  must  be  resorted  to 
for  that  purpose.  If  the  fact  or  facts  upon  which  the  title  de- 
pends be  of  a  nature  not  susceptible  of  proof,  the  title  will  be 
deemed  unmarketable.8  This  rule  was  applied  in  a  case  where 
the  purchaser,  to  sustain  his  title,  would  be  required  to  prove  a 
negative,  namely,  that  the  vendor  had  not  committed  an  act  of 
bankruptcy,9  or  that  a  certain  deed  was  not  fraudulent.10 

A  title  dependent  on  a  fact  must  be  regarded  as  marketable 
where  the  fact  is  so  conclusively  proved  in  a  suit  by  the  vendor 
for  specific  performance,  that  a  verdict  against  the  existence  of  the 
fact  would  not  be  allowed  to  stand  in  a  court  of  law,  and  where 
there  is  no  reasonable  ground  for  apprehending  that  the  same  fa~t 
cannot  be  in  like  manner  proved,  if  necessary,  at  any  time  there- 
after for  the  protection  of  the  purchaser.11 

When  the  purchaser  objects  to  specific  performance  on  the 
ground  that  the  title  is  doubtful,  the  court  may  of  course  inquire 
into  the  facts  upon  which  the  objection  is  rested,  for  the  purpose 
of  determining  whether  the  title  is  so  doubtful  that  the  purchaser 
will  not  be  required  to  take  it.12  If  satisfactory  means  are  at 

1  Wilson  v.  Jeffries,  4  J.  J.  M.  (Ky.)  494. 

"1  Sugd.  Vend.  (8th  Am.  ed.)  594.  Smith  v.  Death,  5  Madd.  371,  where 
the  question  was  whether  a  certain  devisee  had  been  brought  up  as  a  member 
of  the  Church  of  England  and  had  been  a  constant  frequenter  thereof. 
Shriver  v.  Shriver,  86  N.  Y.  575. 

'  Lowe  v.  Lush,  14  Ves.  547. 

"Hartly  v.  Smith,  Buck  Bank.  Cas..360. 

"Barger  v.  Gery,  64  N.  J.  Eq.  263;  53  Atl.  Rep.  483. 

1J1  Sugd.  Vend.  (8th  Am.  ed.)  589.  Osbaldiston  v.  Askew,  1  Russ.  160; 
Bentley  v.  Craven,  17  Beav.  204.  Seymour  v.  Delancey,  1  Hopk.  (N.  Y.)  436; 
14  Am.  Dec.  552,  where  the  court  directed  an  issue  at  law  to  ascertain  cer- 
tain facts  from  which  it  might  be  determined  whether  or  not  the  title  waa 
marketable.  Hedderley  v.  Johnson,  42  Minn.  443;  44  N.  W.  Rep.  527. 


OF   DOUBTFUL  TITLES.  731 

hand  for  investigating  and  removing  the  doubt,  the  court  will 
decree  specific  performance.13  Defects  in  the  record  or  paper  title 
may  be  cured  or  removed  by  parol  evidence,  and  the  purchaser 
compelled  to  take  the  title.14  The  vendor's  bill  for  specific  per- 
formance will  be  retained  until  the  doubts  about  the  title  are 
either  removed  or  confirmed.15  But  it  is  conceived  that  such  evi- 
dence must  convince  the  court  that  there  is  no  probability  that 
the  title  of  the  purchaser  will  ever  be  attacked  by  a  stranger  hav- 
ing color  of  title,  or  that,  if  attacked,  the  purchaser  must,  of  neces- 
sity, have  at  hand  the  means  of  showing  that  the  attack  cannot  be 
sustained. 

§  290.  EQUITABLE  TITLE.  ADVERSE  CLAIMS.  To  the  prin- 
ciple that  a  purchaser  cannot  be  required  to  complete  the  contract 
when  there  are  doubts  about  the  title  which  can  only  be  removed 
by  parol  proof,  has  been  referred  those  decisions  which  establish 
the  rule  that  a  purchaser  cannot  be  compelled  to  take  an  equitable 
title,16  or  a  title  which  is  controverted  in  good  faith  by  an  adverse 

13  Kostenbader  v.  Spotts,  80  Pa.  St.  430.     Hedderley  v.  Johnson,  42  Minn. 
443;  44  N.  W.  Rep.  527. 

14  Hellreigel  v.  Manning,  97  N.  Y.  56,  citing  Seymour  v.  Delancey,  Hopk. 
(N.  Y.)    436;   14  Am.  Dec.  552;   Miller  v.  Macomb,  26  Wend.    (N.  Y.)    229; 
Fagen  v.  Davison,  2  Duer   (N.  Y.),  153;  Brooklyn  Park  Com.  v.  Armstrong, 
45  N.  Y.  234;  Murray  v.  Harway,  56  N.  Y.  337;  Shriver  v.  Shrlver,  86  N. 
Y.  575. 

"Seymour  v.  Delancey,  Hopk.  Ch.  (N.  Y.)  436  (495)  ;  14  Am.  Dec.  552. 

wl  Sugd.  Vend.  (8th  Am.  ed.)  579.  Abel  v.  Hethcote,  2  Ves.  Jr.  100; 
Cooper  v.  Denne,  1  Ves.  Jr.  565 ;  Freeland  v.  Pearson,  L.  R.,  7  Eq.  246.  Mor- 
ris v.  Mowatt,  2  Paige  Ch.  (N.  Y.)  586;  22  Am.  Dec.  661.  Waggoner  r. 
Waggoner,  3  T.  B.  Mon.  (Ky.)  556.  Jones  v.  Taylor,  7  Tax.  240;  66  Am. 
Dec.  48;  Littlefield  v.  Tinsley,  26  Tex.  353.  Ragan  v.  Gaither,  11  Gill  A  J. 
(Md.)  472.  Hendricks  v.  Gillespie,  31  Grat.  (Va.)  181,  194.  Newberry  r. 
French,  98  Va.  479;  57  N.  E.  Rep.  381.  Reed  v.  Noe,  9  Yerg.  (Tenn.)  282, 
especially  where  the  equity  is  controverted.  Ankeny  v.  Clark,  148  U.  S.  345, 
a  case  in  which  the  vendor,  a  railroad  company,  had  not  received  a  convey- 
ance from  the  government  by  reason  of  its  failure  to  pay  the  costs  of  sur- 
veying the  land.  Coburn  v.  Haley,  57  Me.  347.  A  purchaser  cannot  be  re- 
quired to  take  an  equitable  title  when  the  facts  constituting  the  equity  rest 
only  in  parol  and  are  liable  to  be  shortly  incapable  of  proof.  Owings  v.  Bald- 
win, 8  Gill  (Md.),  337.  While  the  purchaser  cannot  be  compelled  to  take  an 
equitable  title,  it  is  to  be  remembered  that  the  vendor  will,  if  time  is  not 
material,  be  allowed  time  in  which  to  get  in  the  legal  title.  Post,  ch.  32. 
Andrew  v.  Babcock,  (Conn.)  26  Atl.  Rep.  715.  In  Jones  v.  Haff,  36  Tex. 
678,  it  would  seen  at  the  first  glance  that  the  court  held  that  the  purchaser 


732  MARKETABLE    TITLE    TO    REAL    ESTATE. 

claimant.17  It  would  seem,  however,  that  such  titles  are  not 
merely  "  doubtful  "  in  the  technical  sense  of  that  term,  but  abso- 
lutely defective.  It  is  obvious  that  a  title  cannot  be  rendered  un- 
marketable by  a  mere  naked  adverse  claim  to  the  premises  without 
color  of  title;  otherwise  a  purchaser  might  always  avoid  perform- 
ance of  his  contract  by  procuring  a  stranger  to  set  up  such  a 
claim.18  But  if  there  be  color  of  outstanding  title  which  may 

could  be  compelled  to  take  an  equitable  title,  but  a  careful  examination  of 
the  case  shows  that  the  vendor's  title  was  really  legal.  The  title  of  a  remote 
predecessor  of  the  vendor  had  been  equitable  only,  consisting  of  a  "  bond  for 
title,"  but  there  had  been  mesne  conveyances  down  to  the  vendor,  and  he  wa* 
in  possession  under  a  conveyance.  Nothing  more  seems  to  have  been  decided 
in  the  case  than  that  a  legal  title  could  not  be  rejected  on  the  ground  that 
ft  had  been  equitable  only  in  its  inception,  assuming  that  the  original  equit- 
able title  was  such  as  a  court  of  equity  would  enforce. 

"1  Sugd.  Vend.  (7th  Am.  ed.)  592  (520)  ;  Osbaldiston  v.  Askew,  1  Russ. 
160.  Scott  v.  Simpson,  11  Heisk.  (Tenn.)  310.  Owings  v.  Baldwin,  8  Gill 
(Md.),  337.  Linn  v.  McLean,  80  Ala.  360.  Estell  v.  Cole,  62  Tex.  695.  Mor- 
rison v.  Waggy,  43  W.  Va.  405;  27  S.  E.  Rep.  214.  A  lis  pendens  renders 
the  title  of  the  vendor  unmarketable.  Earl  v.  Campbell,  14  How.  Pr.  (N.  Y.) 
330.  But  see  Wilsey  v.  Dennis,  44  Barb.  (N.  Y.)  354,  and  cases  cited  post, 
§  306.  But  the  mere  acceptance  of  a  conveyance  pendente  lite  will  not  affect 
the  title  of  the  grantee  if  the  contract  of  sale  was  made  before  the  suit  was 
commenced.  Parks  v.  Jackson,  11  Wend.  (N.  Y.)  442;  25  Am.  Dec.  656.  A 
sale  of  land  for  delinquent  taxes  puts  a  cloud  on  the  title  and  renders  it 
unmarketable.  Wilson  v.  Tappan,  6  Ohio,  172.  So,  also,  a  suit  attacking  for 
validity  of  a  will  under  which  the  vendor  holds.  Hale  v.  Cravener,  128  111. 
408,  affirming  27  111.  App.  275.  But  if  the  person  in  whom  is  the  alleged 
adverse  title  acquiesces  in  the  vendor's  claim  to  the  title,  the  purchaser  can- 
not refuse  to  perform  the  contract.  Laverty  v.  Moore,  33  N.  Y.  658.  In 
Greenleaf  v.  Queen,  1  Pet.  (U.  S.)  138,  it  was  held  that  a  prior  sale  of  the 
premises  under  a  deed  of  trust,  the  purchaser  never  having  complied  with  the 
terms  of  the  sale,  nor  during  twelve  years  laid  any  claim  to  the  property, 
constituted  no  such  objection  to  the  title  as  would  justify  a  rescission  at  the 
suit  o'f  the  second  purchaser.  If  any  person  has  an  interest  in  or  claim  to 
the  estate  which  he  may  enforce,  the  purchaser  cannot  be  compelled  to  take 
the  estate,  no  matter  how  improbable  it  is  that  the  claim  will  be  enforced. 
Cunningham  v.  Sharp,  11  Humph.  (Tenn.)  116.  Dobbs  v.  Norcross,  24  N. 
J.  Eq.  327.  King  v.  Knapp,  59  N.  Y.  462.  The  purchaser  cannot  be  com- 
pelled to  complete  the  contract  if  the  boundaries  of  the  premises  be  involved 
in  doubt  or  dispute.  Voorhees  v.  De  Myer.  3  Sandf.  Ch.  (N.  Y.)  614. 

"Young  v.  Lillard,  1  A.  K.  Marsh.  (Ky. )  4S2.  An  alleged  adverse  claim 
unsustained  by  record  evidence  does  not  make  a  title  doubtful.  Allen  v. 
Phillip,  2  Litt.  (Ky.)  1.  A  purchaser  may  be  compelled  to  take  the  title  if 
it  appears  that  the  adverse  claim  has  been  decided,  barred  or  released.  Jack- 
son v.  Murray,  5  T.  B.  Mon.  (Ky.)  184;  17  Am.  Dec.  53.  It  is  not  a  con- 
clusive objection  to  the  title  that  a  third  party  has  filed  a  bill  against  the 


OF   DOUBTFUL   TITLES.  733 

prove  substantial,  though  there  are  not  sufficient  facts  in  evidence 
to  enable  the  court  to  say  that  the  title  is  in  another,  a  purchaser 
will  not  be  held  to  take  it  and  encounter  the  hazard  of  litigation.1' 
Of  course  the  title  will  be  held  unmarketable  where  there  arc  two 
conflicting  record  titles  to  the  property,20  or  where  a  record  title 
to  the  property  is  outstanding  in  another.21  An  exception  to  the 
rule  that  a  purchaser  will  not  be  compelled  to  take  an  equitable 
title  has  been  held  to  exist  when  the  purchase  was  under  a  decree, 
the  purchaser  in  such  a  case  being  compelled  to  take  just  such 
title  as  the  court  can  give.22  But  such  purchaser  cannot  require 
his  vendee  to  take  from  him  the  same  title;  the  reason  being  that 
in  the  latter  case  the  rule  caveat  emptor,  as  enforced  in  judicial 
sales,  does  not  apply.23 

seller,  claiming  a  right  to  the  estate,  but  the  nature  of  the  adverse  claim 
will  be  looked  into.  1  Sugd.  Vend.  (8th  Am.  ed.)  589,  citing  Osbaldiston  v. 
Askew,  1  Russ.  160.  Bentley  v.  Craven,  17  Beav.  204,  where  the  purchase 
money  was  detained  in  court  until  the  rights  of  an  adverse  claimant  could  be 
determined  in  a  suit  which  was  pending.  In  Francis  v.  Hazelrig,  1  A.  K. 
Marsh.  (Ky.)  93,  the  contract  provided  that  the  vendor  should  convey  "a 
clear  and  indisputable  title."  The  purchaser  contended  that  the  interference 
of  a  junior  patent  with  a  senior  patent  rendered  the  title  under  the  senior 
patent  disputable  and  cloudy,  but  the  court  said :  "  An  indisputable  title  ia 
one  which,  according  to  the  literal  import  of  the  term,  cannot  be  disputed. 
It  may,  perhaps,  be  said,  without  a  violation  of  propriety  in  language,  that  a 
title  may  be  disputed  wrongfully  as  well  as  rightfully,  but  the  latter  is,  with- 
out doubt,  the  true  sense  of  the  contract.  A  different  construction  would 
render  it  impossible  to  perform  the  contract,  for  there  can  be  no  title  which 
may  not  Be  wrongfully  disputed.  It  follows,  therefore,  as  the  junior  title 
confers  no  legal  right  to  dispute  the  title  derived  under  an  elder  patent,  that 
the  latter,  notwithstanding  the  interference,  will  be,  in  the  true  sense  of  the 
term,  indisputable."  The  contract  had  been  executed  by  a  conveyance  with  war- 
ranty in  this  case,  but  the  foregoing  observations  would  apply  with  equal  force 
where  the  contract  is  executory.  In  Edwards  v.  Van  Bibber,  1  Leigh  ( Va. ) , 
183,  a  vendor  was  permitted  to  show  that  an  escheat  of  the  estate  in  contro- 
versy to  the  Commonwealth  for  default  of  heirs  of  a  former  owner  who  had 
sold  the  estate  but  died  before  conveying  it,  was  unsustained  by  the  facts, 
and  not  enforcible  by  the  Commonwealth;  and  the  purchaser  was  compelled 
to  take  the  title. 

"  Speak'man  v.  Forepaugh,  44  Pa.  St.  373 ;  Herman  v.  Somers,  158  Pa.  St. 
424. 

"Reydell  v.  Reydell,  31  N.  Y.  Supp.  1. 

"Darrow  v.  Cornell,  51  N.  Y.  Supp.  828. 

K  1  Sugd.  Vend.  (8th  Am.  ed.)  593  (338).  Carter  v.  Morris  B.  A  L.  Asso., 
108  La.  143;  32  So.  Rep.  473.  Wollenberg  v.  Rose,  (Oreg.)  78  Pac.  Rep.  751. 

**  Powell  v.  Powell,  6  Madd.  63. 


734  MABZETABLE    TITLE    TO    EEAL    ESTATE. 

The  purchaser  cannot  be  compelled  to  take  a  title  which  is  al- 
ready in  litigation  or  which  will  probably  involve  him  in  litiga- 
tion ;  he  cannot  be  required  to  purchase  a  law  suit.24  It  has  been 
held  that  a  pending  action,  and  lis  pendens  filed,  justify  the  rejec- 
tion of  the  title  by  the  purchaser,  where  the  complaint  states  a 
good  cause  of  action  affecting  the  land.  The  purchaser  is  not 
required  to  go  outside  the  complaint  and  look  up  the  evidence  to 
determine  whether  the  action  is  maintainable.25  Upon  the  same 
principle,  the  purchaser  cannot  be  compelled  to  accept  the  title, 
if  the  premises  are  in  the  possession  of  an  adverse  claimant.26  Nor 
can  he  be  required  to  accept  the  title  where  the  vendor  has  made 
a  second  sale  of  the  premises  before  default  on  the  part  of  the 
first  purchaser,  even  though  the  purchaser  at  the  second  sale  had 
notice  of  the  first  sale  and  took  subject  to  the  rights  of  the  first 
purchaser.27  It  has  been  said  that  the  probability  of  a  law  suit 
is  no  objection  to  the  title  if  the  suit  must  inevitably  terminate  in 
the  purchaser's  favor.  Thus  it  has  been  held  that  a  purchaser 
may  be  compelled  to  accept  a  conveyance  from  one  who  had  exe- 
cuted a  prior  voluntary  conveyance  of  the  premises,  even  though 
the  purchase  was  made  with  notice  of  such  prior  conveyance.2* 
If  there  be  a  reasonable  doubt,  however,  as  to  whether  the  prior 
conveyance  was  in  fact  without  valuable  consideration,  it  is  appre- 
hended that  the  subsequent  purchaser  could  not  be  compelled  to 
take  the  title.  Besides  the  vexation  and  expense  of  the  suit,  the 
purchaser  would  run  the  risk  of  being  unable  to  show  that  the 
conveyance  was  voluntary.  The  probability  or  possibility  of  a 
lawsuit  is  of  course  no  objection  to  the  title  where  the  purchaser 

"Ante,  §  284.  James  v.  Mayer,  41  La.  Ann.  1100;  7  So.  Rep.  618;  Lyman 
v.  Stroudbaugh,  47  La.  Ann.  71;  16  So.  Rep.  662.  Schwartz  v.  Woodruff, 
132  Mich.  513;  93  N.  W.  Rep.  1067;  Bartlett  v.  Magee,  (Cal.)  45  Pac.  Rep. 
1029.  Bullard  v.  Bicknell,  49  N.  Y.  Supp.  666;  26  App.  Div.  319;  Kopp  T. 
Kopp,  1  N.  Y.  Supp.  261;  48  Hun,  532. 

25  Simon  v.  Vendeveer,  155  N.  Y.  377 ;  49  N.  E.  Rep.  1043.     Post,  §  306. 

Ml  Sugd.  Vend.  (8th  Am.  ed.)  586;  Id.  ch.  22.  Butterfield  v.  Heath,  15 
Beav.  408;  Humphreys  v.  Moses,  2  W.  Bl.  1019;  Currie  v.  Nind,  1  Myl.  & 
Cr.  17. 

"Birch  v.  Cooper,  136  Cal.  636;  69  Pac.  Rep.  420.  But  see  Hoock  v.  Bow- 
man, 42  Neb.  87,  and  Kreibich  v.  Martz,  119  Mich.  343,  where  the  contrary 
appears  to  have  been  held. 

*  Williams  v.  Carter,  3  Dana  (Ky.),  198. 


OF    DOUBTFUL   TITLES.  735 

is  or  may  be  let  into  the  possession,  and  the  suit  must  inevitably 
terminate  in  his  favor;  for  there  is  no  title  however  good  that 
may  not  be  attacked  by  ill-advised  claimants.  But  it  may  be 
doubted  whether  in  any  case  the  purchaser  could  be  compelled  to 
complete  the  contract  if  the  premises  were  held  by  an  adverse 
claimant  and  a  suit  by  the  purchaser  to  get  possession  should  be 
necessary.  In  ejectment  the  plaintiff  must  show  title  in  himself, 
a  proceeding  which  often  involves  much  expense  and  delay,  and 
there  seems  to  be  no  reason  why  this  burden  should  be  imposed 
upon  the  purchaser.  Besides  possession  is  one  of  the  principal 
elements  of  a  good  title,  and  a  vendor  who  is  unable  to  give  it,  is 
unable  to  perform  his  contract. 

The  rule  that  the  purchaser  cannot  be  compelled  to  take  an 
equitable  title  has  been  extended  to  a  case  in  which  the  legal  title 
was  outstanding  in  a  trustee,  though  the  trustee  might  be  com- 
pelled to  convey  at  any  time.2' 

We  have  seen  that  if  the  purchaser  enter  into  the  contract  know- 
ing that  the  title  is  in  litigation,  he  cannot  make  that  fact  a  ground 
for  rescission.30  A  fortiori  he  cannot  rescind  where  he  has  agreed 
to  postpone  the  execution  of  the  contract  until  a  suit  involving 
the  title  is  determined.31  Nor  can  he  object  that  the  vendor  has 
only  an  equitable  title,  if  he  buys  with  knowledge  of  that  fact  and 
the  contract  does  not  provide  that  he  shall  have  the  legal  title 
before  the  time  to  convey  arrives." 

Where  the  contract  contains  no  provision  as  to  the  kind  of  title 
•which  the  purchaser  is  to  receive,  and  he  buys  with  knowledge  of 
the  fact  that  a  squatter  is  in  possession- of  a  part  of  the  premisop, 
it  has  been  held  that  there  is  no  implied  contract  to  furnish  a  good 
marketable  title,  and  that  the  vendor  may  compel  specific  per- 
formance. In  such  case  parol  evidence  is  admissible  to  show 
notice  of  the  squatter's  possession  at  the  time  of  the  contract.83 

§  291.  DEFEASIBLE  ESTATES.  CONTINGENCIES.  A  purchaser 
who,  under  his  contract,  is  entitled  to  demand  a  conveyance  of  an 

"Murray  v.  Ellis,  112  Pa.  St.  485;  3  All.  Rep.  845. 
"Ante,  §  85. 

"Hale  v.  Cravener,  128  111.  408;  21  N.  E.  Rep.  534.  Holmes  v.  Richards, 
67  Ala.  577. 

"Gray  v.  Hill,  (Mich.)  63  N.  W.  Rep.  77. 
"Leonard  v.  Woodruff,    (Utah)   65  Pac.  Rep.  199. 


736  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

indefeasible  estate  in  fee  simple,  cannot  be  required  to  take  an 
estate  defeasible  upon  the  happening  of  a  certain  event  or  upon  a 
certain  contingency  ;34  for  example,  a  devise  to  a  woman  providing 
that  title  should  remain  in  her  only  so  long  as  she  should  live 
separate  from  her  husband.35  This  is  not  so  much  upon  the  ground 
that  it  is  doubtful  whether  the  estate  will  ever  become  absolute, 
as  for  the  reason  that  the  purchaser  cannot  be  compelled  to  take 
an  estate  less  in  value  and  extent  than  that  for  which  he  bargained. 
If,  however,  it  be  alleged  that  it  is  physically  impossible  that  the 
event  defeating  the  estate  should  ever  transpire,  and  it  is  doubtful 
whether  such  allegation  can  be  sustained,  the  title  becomes  doubt- 
ful or  unmarketable  in  the  technical  sense  of  the  term.  If  it  can 
be  shown  beyond  a  doubt  that  the  happening  of  the  event  which 
will  defeat  the  estate  is  a  physical  impossibility,  no  reason  is  per- 
ceived why  the  purchaser  should  not  be  compelled  to  take  the 
title.36 

"Van  Schaick  v.  Lese,  66  N.  Y.  Supp.  64;  31  Misc.  610;  Lamprey  v. 
Whitehead,  64  N.  J.  Eq.  408 ;  54  All.  Rep.  803 ;  Richards  v.  Knight,  64  N.  J. 
Eq.  196;  53  Atl.  Rep.  452.  See  Mr.  Austin  Abbot's  note  to  Moore  v.  Wil- 
liams, 23  App.  N.  Cas.  (N.  Y.)  416.  The  liability  of  an  estate  to  defeat  br 
the  birth  of  issue  capable  of  taking  in  remainder  renders  the  title  doubtful. 
McPherson  v.  Smith,  49  Hun  (N.  Y.),  254;  2  N.  Y.  Supp.  60.  The  following 
illustration  of  this  principle  is  from  the  opinion  of  Chancellor  WALWORTH 
in  Seaman  v.  Hicks,  8  Paige  (N.  Y.),  655:  "  In  the  ordinary  case  a  base  fee, 
determinable  only  upon  the  contingency  of  a  single  gentleman,  far-advanced  in 
life,  afterwards  marrying  and  having  issue,  most  persons  might  consider  the 
happening  of  the  event  which  was  to  divest  the  estate  so  improbable  as  to 
render  such  determinable  fee  substantially  the  same  as  an  absolute  inde- 
feasible estate  of  inheritance  in  fee  simple.  For  it  might  be  considered  as 
wholly  improbable  that  a  bachelor  of  seventy,  who  in  the  prime  of  life  had 
so  far  disregarded  the  teachings  of  wisdom  as  well  as  of  nature  as  to  con- 
tinue in  a  state  of  celibacy,  would  at  that  advanced  age  not  only  be  guilty 
of  the  extreme  folly  of  contracting  matrimony  for  the  first  time,  hut  would 
also  procreate  heirs  to  divest  the  estate  determinable  upon  that  event.  But 
certainly  no  lawyer  could  for  a  moment  suppose  that  a  vendee,  who  had  con- 
tracted for  a  good  title,  was  boun'*.  to  accept  an  estate  which  depended  upon 
a  contingency  of  that  nature;  unless  the  fact  was  satisfactorily  established 
that  it  was  physically  impossible  that  the  event  which  was  to  determine  the 
estate  should  ever  happen." 

"Wright  v.  Mayer,  62  N.  Y.  Supp.  410;  47  App.  Div.  604. 

*  Seaman  v.  Hicks,  8  Paige  (N.  Y.),  655,  658,  dictum.  A  title  derived 
through  a  sale  in  proceedings  for  a  partition,  is  not  rendered  unmarketable 
fcy  the  fact  that  persons  not  in  esse  at  the  time  of  the  sale  may  come  into 
existence  and  be  entitled  to  share  in  the  property;  as  where  lands  are  devised 


OF    DOUBTFUL   TITLES.  737 

If  the  estate  of  the  vendor  could  only  have  arisen  upon  the  hap- 
pening of  a  contingency  provided  for  in  a  deed  or  will,  such  as 
the  death  of  a  particular  person  without  lawful  issue,  the  pur- 
chaser cannot  be  required  to  take  the  title  in  the  absence  of  evi- 
dence which  satisfactorily  establishes  the  happening  of  ihe  con- 
tingency.37 

§  292.  TITLE  DEPENDENT  UPON  ADVERSE  POSSESSION.  A 
purchaser  may  be  compelled  to  take  a  title  resting  upon  a  hostile, 
adverse  and  uninterrupted  possession,  under  color  of  title  which 
has  continued  for  a  length  of  time  sufficient  to  bar  the  rights  of 
any  possible  adverse  claimant.38  There  are  cases  which  apparently 

to  the  testator's  grandchildren,  and  at  the  time  of  a  partition  of  the  prop- 
erty, there  is  a  possibility  that  grandchildren  may  be  born  thereafter  who 
would  be  entitled  to  come  into  partition.  Wills  v.  Slade,  6  Ves.  498.  Espe- 
cially is  this  true  under  statutes  which  provide  that  those  entitled  to  a 
reversion,  remainder  or  inheritance,  shall  be  bound  by  a  judgment  in  parti- 
tion. Cheesman  v.  Thome,  1  Edw.  Ch.  (N.  Y.)  629. 

wChew  v.  Tome,  93  Md.  244;  48  Atl.  701. 

"1  Sugd.  Vend.  (8th  Am.  ed.)  41,  584;  2  id.  101;  Atk.  Marketable  Title, 
396,  403.  See,  generally,  the  cases  cited  throughout  this  subdivision.  Games 
v.  Bonner,  54  L.  J.  (N.  S.)  Ch.  517.  Prosser  v.  Watts,  6  Madd.  59;  Cottrell 
v.  Watkins,  1  Beav.  361;  Parr  v.  Lovegrove,  4  Drew.  170;  Scott  v.  Nixon,  3 
Dru.  &  War.  388 ;  Kirkwood  v.  Lloyd,  12  Ir.  Eq.  585 ;  Stewart  v.  Conyngham, 
1  Ir.  Ch.  C.  534;  Hyde  v.  Dallaway,  6  Jur.  11D.  See,  also,  Emery  v.  Gro- 
cock,  6  Madd.  54;  Barmvall  v.  Harris,  1  Taunt.  430;  Causton  v.  Macklew,  2 
Sim.  242 ;  Martin  v.  Cotter,  3  Jon.  &  La.  T.  496 ;  Maginnis  v.  Fallon,  2  Moll. 
566;  Bolton  v.  School  Board,  L.  R.,  7  Ch.  Div.  766;  Hilary  v.  Waller,  12  Ves. 
239;  Thompson  v.  Milliken,  9  Grant  Ch.  (Can.)  359.  Wieland  v.  Renner,  65 
How.  Pr.  (N.  Y.)  245;  Meyer  v.  Boyd,  51  Hun  (N.  Y.),  291;  4  N.  Y.  Supp. 
328;  Ford  v.  Schlosser,  34  N.  Y.  Supp.  12.  Weil  v.  Radley,  52  N.  Y.  Supp. 
398;  Simis  v.  McElroy,  160  N.  Y.  156;  54  N.  E.  Rep.  674.  Kahn  v.  Mount, 
61  N.  Y.  Supp.  358;  46  App.  Div.  84.  Hammerschlag  v.  Duryea,  66  N.  Y. 
Supp.  87;  31  Misc.  Rep.  678;  Ruff  v.  Gerhartt,  76  N.  Y.  Supp.  743;  73  App. 
Div.  245;  Forsyth  v.  Leslie,  77  N.  Y.  Supp.  826;  74  App.  Div.  517.  Core  v. 
Wigner,  32  W.  Va.  277;  9  S.  E.  Rep.  36.  Hall  v.  Scott,  90  Ky.  340;  13  S.  W. 
Rep.  249;  Woodhead  v.  Poulds,  (Ky.)  12  S.  W.  Rep.  129;  Thacker  v.  Booth, 
(Ky.)  6  S.  W.  Rep.  460;  Williams  v.  Porter,  (Ky.)  21  S.  W.  Rep.  643. 
Bryan  v.  Osborne,  61  Ga.  51,  dictum.  Lurman  v.  Hubner,  75  Md.  2G&;  2 
Atl.  Rep.  646;  Foreman  v.  Wolf,  (Md.)  29  Atl.  Rep.  837.  Erdman  v.  Corse, 
87  Md.  506;  40  Atl.  Rep.  107;  Gump  v.  Sibley,  79  Md.  165;  28  Atl.  Rep.  977. 
Upon  the  general  proposition  thnt  the  Statute  of  Limitations  vests  a  perfect 
title  in  the  occupant,  see  Bicknell  v.  Comstock,  113  U.  S.  149;  Leffingwell  v. 
Warren,  2  Black  (U.  S.).  599;  Croxall  v.  Sherrard,  5  Wall.  (U.  S.)  2 
Dickerson  v.  Colgrove,  100  U.  S.  578;  Harpening  v.  Dutch  Church,  16  Pet. 
<U.  S.)  455.  Elder  v.  McCloskey,  70  Fed.  Rep.  529.  Cox  v.  Cox,  18  D.  C.  1. 

47 


738  MARKETABLE    TITLE    TO    REAL    ESTATE. 

deny  this  proposition,39  but  in  most  of  them  it  will  be  found  that 
the  facts  tending  to  establish  the  adverse  possession  for  the  re- 

Conley  v.  Finn,  171  Mass.  20;  50  N.  E.  Rep.  460.  McNeill  v.  Fuller,  121  N. 
C.  209;  28  S.  E.  Rep.  299.  Barnard  v.  Brown,  112  Mich.  452;  70  N.  W.  Rep. 
1038.  Tewksbury  v.  Howard,  138  Ind.  103;  37  N.  E.  Rep.  355.  Nelson  v. 
Jacobs,  99  Wis.  547;  75  N.  W.  Rep.  406.  Ballou  v.  Sherwood,  32  Neb.  666; 
49  N.  W.  Rep.  790.  Scannell  v.  Am.  Soda  F.  Co.,  161  Mo,  606;  61  S.  W. 
Rep.  889.  Fant  v.  Wright,  (Tex.  Civ.  App.)  61  S.  W.  Rep.  514.  Dallmeyer 
v.  Ferguson,  198  Pa.  St.  288;  47  Atl.  Rep.  962;  Westfall  v.  Washlagel,  200 
Pa.  St.  181;  49  Atl.  Rep.  941.  Miller  v.  Cramer,  48  S.  C.  282;  26  S.  E.  Rep. 
657;  Maccaw  v.  Crawley,  59  S.  C.  342;  37  S.  E.  Rep.  934.  Revol  v.  Stroud- 
back,  107  La.  2%;  31  So.  Rep.  665;  Abraham  v.  Mieding,  108  La.  510;  32 
'So.  Rep.  329.  In  Edwards  v.  Morris,  1  Ohio,  524,  it  appeared  that  a  deed  in 
the  vendor's  chain  of  title  had  not  been  acknowledged  or  proven,  but  the 
court  held  that  possession  under  the  deed  having  been  had  for  twenty-nine 
years,  the  contract  should  not  be  rescinded.  A  defect  in  the  acknowledgment 
of  a  deed  which  has  been  recorded  for  forty  years,  and  no  title  hostile  to  that 
derived  thereunder  has  been  asserted,  does  not  render  the  title  unmarketable. 
Bucklen  v.  Hasterlik,  155  111.  423;  40  N.  E.  Rep.  561.  Kennedy  v.  Gramling, 
33  So.  Car.  367;  11  S.  E.  Rep.  1081.  In  Gaines  v.  Jones,  86  Ky.  527;  7  S. 
W.  Rep.  25,  the  premises  had  been  bought  and  paid  for  by  a  prior  purchaser, 
but  by  mistake  had  been  omitted  from  a  deed  to  him.  Possession  had  been 
held  by  and  under  such  purchaser  for  more  than  the  statutory  period,  and  the 
title  was  held  such  as  a  subsequent  purchaser  must  accept  Titles  marketable. 
In  the  following  cases  the  vendor's  title  by  adverse  possession  was  held  free 
from  doubt,  and  such  as  the  purchaser  was  bound  to  accept:  Grant  v.  Was- 
son,  6  J.  J.  Marsh.  (Ky.)  618,  where  the  vendor  had  had  thirty  years'  unin- 
terrupted possession.  Abrams  v.  Rhoner,  44  Hun  (N.  Y.),  507,  ninety  years. 
Lyles  v.  Kirkpatrick,  9  S.  C.  265,  where  it  was  held  that  possession  under  a 
deed  for  more  than  ten  years,  the  statutory  period  of  limitation,  cured  the 
objection  that  a  deed,  under  which  the  vendor  held,  was  invalid  for  want  of 
a  subscribing  witness.  Edwards  v.  Morris,  1  Ohio,  524,  forty  years.  Vance 
v.  House,  5  B.  Mon.  (Ky.)  537,  thirty  years.  An  adverse,  uninterrupted  pos- 
session for  more  than  twenty  years,  without  evidence  that  the  case  was  within 
any  of  the  exceptions  of  the  Statute  of  Limitations,  makes  the  title  market- 
able. Allen  v.  Phillips,  2  Litt.  (Ky.)  1;  McCann  v.  Edwards,  6  B.  Mon. 
(Ky.)  208,  thirty  years.  A  minute  on  the  books  of  town  trustees,  showing  a 
prior  sale  of  a  lot,  is  no  objection,  after  the  lapse  of  many  years,  to  the  title, 
in  the  absence  of  anything  to  show  that  the  trustees  had  ever  conveyed  the  lot 
to  their  vendee.  Morris  v.  McMillen,  3  A.  K.  Marsh.  (Ky.)  565.  Possession 
for  many  years  under  a  deed,  accidentally  destroyed,  creates  such  a  title  as  a 
purchaser  will  be  required  to  take.  Wade  v.  Greenwood,  2  Rob.  (Va.)  474; 
40  Am.  Dec.  759.  Per  curiam.  "  It  has  been  objected  that  a  purchaser 


s'Eyton  v.  Dicken,  4  Price  Ex.  303.  Tevis  v.  Richardson,  7  B.  Mon.  (Ky.) 
654.  Mott  v.  Mott,  68  N.  Y.  246,  semble;  Hartley  v.  James,  50  N.  Y.  38, 
criticised  in  Ottinger  v.  Strasburger,  33  Hun  (N.  Y.),  466,  469.  Chapman 
v.  Lee,  55  Ala.  616. 


OF   DOUBTFUL   TITLES.  739 

quired  length  of  time  were  considered  by  the  court  too  doubtful 
to  support  a  decree  against  the  purchaser.  If  the  facts  upon 
which  such  a  title  rests  be  clear  and  undisputed,  the  title  stands 
upon  the  same  ground  as  any  other  title  founded  upon  matters 

should  not  be  required  to  take  a  title  which  has  been  made  good  by  the  stat- 
ute. We  can  see  no  force  in  the  objection.  So  that  the  title  be  good,  it 
matters  not  how  it  has  been  made  so."  Tomlinson  v.  Savage,  6  Ired.  Eq. 
(N.  C.)  430,  435.  In  Bohm  v.  Fay,  17  Abb.  N.  Cas.  (N.  Y.)  175,  there  was 
a  missing  deed  in  the  chain  of  title,  but  there  had  been  an  adverse,  uninter- 
rupted possession  for  fifty-five  years,  and  no  claim  to  the  land  had  ever  been 
made  by  any  person.  The  court  presumed  that  the  missing  deed  had  been 
actually  executed  and  delivered,  but  had  been  lost,  and  the  title  was  held 
marketable. 

In  1821  the  record  title  of  certain  premises  was  in  the  executors  of  B.,  with 
power  of  sale.  T.  entered  into  possession  of  the  premises  that  year,  and  he 
and  his  assigns  held  possession  for  more  than  fifty  years.  In  a  suit  for  par- 
tition of  B.'s  estate  among  his  heirs,  in  1831,  no  notice  was  taken  of  these 
premises.  Held,  that  a  sale  and  conveyance  by  the  executors  of  B.  to  T. 
must  be  presumed,  and  that  the  title  of  one  claiming  through  T.  was  market- 
able. Ottinger  v.  Strasburger,  33  Hun  (N.  Y.),  466.  See,  also,  Shober  v. 
Dutton,  6  Phila.  (Pa.)  185.  Grady  v.  Ward,  20  Barb.  (N.  Y.)  543;  O'Connor 
v.  Huggins,  1  N.  Y.  Supp.  377. 

Titles  not  marketable.  In  the  following  cases,  the  evidence  was  held  in- 
sufficient to  show  that  the  title  by  adverse  possession  was  free  from  doubt : 
Scott  v.  Simpson,  11  Heisk.  310.  Beckwith  v.  Kouns,  6  B.  Mon.  (Ky.)  222; 
Lewis  v.  Herndon,  3  Litt.  (Ky.)  358;  14  Am.  Dec.  68;  Hightower  r.  Smith, 
5  J.  J.  Marsh.  (Ky.)  542.  Shriver  v.  Shriver,  86  N.  Y.  575;  Schultze  v. 
Rose,  65  How.  Pr.  (N.  Y.)  75.  Freedman  v.  Oppenheim,  81  N.  Y.  Supp. 
110;  80  App.  Div.  487.  Griffin  v.  Cunningham,  19  Grat.  (Va.)  571.  A  trustee 
cannot  acquire  title  to  the  trust  subject  under  the  Statute  of  Limitations, 
because  his  possession  cannot  be  adverse  to  that  of  the  cestui  que  trust.  2 
Sugd.  Vend.  (8th  Am.  ed.)  106,  n.  and  cases  cited.  Possession  for  the  statu- 
tory period  under  a  deed  which  is  insufficiently  acknowledged  and  recorded, 
to  bar  a  contingent  right  of  dower,  will  not  perfect  the  title  of  the  grantee. 
McGuire  v.  Bowman,  6  Bush  (Ky.),  550.  In  Brown  v.  Cannon,  5  Gil.  (111.) 
182,  the  court,  while  admitting  that  a  purchaser  might  be  compelled  to  take 
a  title  by  adverse  possession  in  a  case  free  from  doubt,  observed :  "  Of  all 
known  titles  to  land  beyond  a  mere  naked  possession,  which  are  prima  facie 
good,  there  are,  perhaps,  none  recognized  by  law  more  doubtful  and  uncertain 
than  those  depending  for  their  validity  upon  an  adverse  possession  under  a 
statute  of  limitations."  And  in  the  following  cases  of  doubtful  questions  of 
law  applicable  to  title  by  adverse  possession,  the  title  was  held  unmarket- 
able :  Whether  the  words  "  other  charges,"  in  a  statute  providing  that  ground 
rents,  annuities  and  "other  charges"  should  be  presumed  to  be  satisfied  after 
a  certain  length  of  time,  included  mortgages.  Pratt  v.  Eby,  67  Pa.  St.  300. 
Whether  a  statute  providing  that  a  trust  for  the  benefit  of  creditors  ahull 
be  deemed  discharged  after  the  lapse  of  twenty-five  years,  operated  retrospec- 
tively. McCahill  v.  ITnn-ilton,  20  Hun  (N.  Y.),  388. 


740  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

in  pais"  But  if  the  facts  alleged  be  disputed  and  doubtful, 
specific  performance  will  be  denied  under  the  rule  that  relieves 
the  purchaser  wherever  he  may,  in  the  future,  be  compelled  to 
resort  to  parol  testimony  to  remove  doubts  about  the  title.41  If, 
however,  the  proof  of  adverse  possession  for  the  statutory  period 
is  so  clear  that  a  court  would  be  bound  to  direct  a  jury  to  find  for 
the  purchaser  if  sued  in  ejectment,  the  title  must  be  held  to  be 
marketable.42 

In  titles  founded  on  the  Statute  of  Limitations  there  must  be 
evidence  to  show,  (1)  that  the  possession  has  been  open,  hostile, 
adverse,  notorious,  and  uninterrupted  for  the  statutory  period; 
(2)  that  there  is  no  saving  to  any  person  on  account  of  personal 
disabilities;  and  (3)  it  must  appear  that  in  all  human  probability 
the  purchaser  will  have  the  means  at  hand  to  establish  his  title 
by  adverse  possession  if  it  should  be  attacked  by  a  third  person 
in  the  future.43  True,  as  has  been  seen,  it  is  a  rule  that  a  pur- 
chaser cannot  be  compelled  to  take  a  title  which,  if  attacked  in 
the  remote  future,  he  can  only  sustain  by  the  testimony  of  wit- 
nesses, since  these  may,  in  the  meanwhile,  have  become  unavail- 
able to  him  by  death  or  disqualification.  But  this  rule  must  be 
given  a  reasonable  construction,  else  it  would  render  unmarketable 
some  titles  of  the  most  satisfactory  kind.  Thus,  title  by  descent 

*Thus,  in  Duvall  v.  Parker,  2  Duv.  (Ky.)  182,  it  was  held  that  the  pur- 
chaser must  take  a  title  dependent  on  thirty  years'  adverse  possession,  ther« 
being,  according  to  the  evidence  in  that  case,  not  the  remotest  probability 
that  he  would  ever  be  disturbed  by  an  adverse  claimant. 

a  2  Beach  Mod.  Eq.  Jur.  §  608.  "  The  only  reason,  if  any,  why  a  title  by 
adverse  possession  is  not  marketable  would  be  because  its  validity  is  a  ques- 
tion of  evidence  rather  than  of  law."  Rawle  Covt.  (5th  ed.)  §  56.  Noyes 
v.  Johnson,  139  Mass.  436;  31  N.  E.  Rep.  767.  McCabe  v.  Kenny,  52  Hun 
(N.  Y.),  514;  5  N.  Y.  Supp.  678.  Boggs  v.  Bodkin,  32  W.  Va.  566;  9  S.  E. 
Rep.  891.  Heller  v.  Cohen,  154  N.  Y.  299;  48  N.  E.  Rep.  527.  McAllister  T. 
Harmon,  101  Va.  17;  42  S.  E.  Rep.  920. 

"Ottinger  v.  Strasburger,  33  Hun  (N.  Y.),  466;  Shriver  v.  Shriver,  86  N. 
Y.  575;  Adams  v.  Rhoner,  44  Hun  (N.  Y.),  507.  Hagan  v.  Drucker,  85  N.  Y. 
Supp.  601 ;  90  App.  Div.  28. 

«  Heller  v.  Cohen,  154  N.  Y.  299 ;  48  N.  E.  Rep.  527 ;  Ruess  v.  Ewen,  54  N. 
Y.  Supp.  357;  34  App.  Div.  484;  Gorman  v.  Gorman,  57  N.  Y.  Supp.  1069; 
40  App.  Div.  225.  The  purchaser's  contention  that  there  can  be  no  adverse 
possession  by  a  tenant  in  common  against  his  co-tenant,  cannot  be  sustained. 
Pope  v.  Thrall,  G8  X.  Y.  Supp.  137;  33  Misc.  Rep.  44. 


OF    DOUBTFUL    TITLES.  741 

is,  as  a  general  rule,  to  be  established  only  by  the  testimony  of 
witnesses,44  and  not  by  documentary  or  record  evidence,  yet  no 
one  for  this  reason  every  objects  that  the  title  is  unmarketable  if 
the  means  of  establishing  the  fact  of  inheritance  exists.  The  same 
reasoning  applies  with  equal  force  to  titles  under  the  Statute  of 
Limitations.  There  must  be  some  present  ground  to  apprehend 
that  the  title  will  be  disputed,  and  the  means  of  sustaining  it 
unavailable  to  the  purchaser.46 

The  possession  of  the  purchaser  is  the  prolongation  or  continua- 
tion of  that  of  the  vendor,  and  if  both  together  amount  to  a  good 
prescriptive  right,  the  purchaser  may  be  compelled  to  complete 
the  contract.46  It  seems  that  if,  by  the  express  terms  of  the  con- 
tract, the  purchaser  is  entitled  to  demand  a  "  good  title  of  record," 
he  cannot  be  compelled  to  accept  a  title  dependent  upon  adverse 
possession.47  And  it  has  been  decided  that  adverse  possession  can 
never  ripen  into  a  marketable  title,  unless  held  under  some  assur- 
ance purporting  to  convey  a  fee  simple,  or  other  estate  equal  in 
quantity  to  that  wrhich  the  vendor  undertakes  to  sell.48  This  de- 
pends upon  the  familiar  rule  that  the  mere  naked  possession  of  a 

**  Affidavits  of  witnesses  as  to  the  fact  of  inheritance  are  sometimes  taken 
and  spread  upon  the  public  records;  but  these,  it  is  obvious,  are  mere  hear- 
say and  inadmissible  as  evidence  in  the  courts,  and  are  not,  strictly  speaking, 
"  record  "  evidence  of  title.  See  Warvelle  Abstracts,  309. 

"Eberhardt  v.  Miller,  71  111.  App.  215;  Hollifield  v.  Landrum  (Tex.  Civ. 
App.),  71  S.  W.  Rep.  979,  citing  the  text. 

"McLaren  v.  Irvin,  63  Ga.  275.  Miller  v.  Cramer,  48  S.  C.  282;  26  S.  E. 
Rep.  657. 

"Page  Y.  Greely,  75  111.  400.  Xoyes  v.  Johnson,  139  Mass.  436;  31  N.  E. 
Rep.  767.  Cherry  v.  Davis,  59  Ga.  454,  semble.  Payne  v.  Markle,  8!>  111. 
66,  where  the  contract  called  for  a  "  perfect  chain  of  title."  In  California 
it  seems  that  the  purchaser  cannot  be  compelled  to  take  a  title  dependent 
upon  the  Statute  of  Limitations,  though  the  contract  does  not  expressly  pro- 
vide for  a  "good  title  of  record."  It  has  been  held  in  that  State  that  the 
purchaser  is  entitled  to  a  title  "fairly  deducible  of  record"  (Turner  v.  Mc- 
Donald, 76  Cal.  180;  18  Pac.  Rep.  262),  and  that,  therefore,  a  title  under  the 
statute  is  not  sufficient.  McCroskey  v.  Ladd,  (Cal.)  28  Pac.  Rep.  21»5; 
Benson  r.  Shotwell,  87  Cal.  56;  25  Pac.  Rep.  249.  Gwin  v.  Calegnri*.  130 
Cal.  384;  73  Pac.  8ol.  Where  the  agreement  was  that  the  title  should  be 
"  satisfactory  "  to  the  purchaser. 

48  Cunningham  v.  Sharp,  11  Humph.  (Tenn.)  IK).  Chapman  v.  l>*e,  55 
•Ala,  616.  Kneller  v.  Lang,  63  Hun  (N.  Y.),  48;  affd.,  137  N.  Y.  589. 


742  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

trespasser  without  color  of  title,  no  matter  how  long  continued, 
will  not  bar  the  entry  of  the  true  owner. 

If  the  title  of  the  party  in  possession  has  ripened  under  the 
Statute  of  Limitations,  it  will  not  be  rendered  doubtful  or  un- 
marketable by  a  subsequent  statute  extending  the  period  of  limi- 
tation.49 A  .title  dependent  upon  adverse  possession  against  a 
remainderman  is  of  course  unmarketable,  since  his  right  of  action 
does  not  accrue  until  the  precedent  estate  determines.50 

If  the  vendor's  title  be  perfected  by  lapse  of  time  pending  a  suit 
for  rescission  or  specific  performance,  the  purchaser  must  accept 
it,61  unless  time  was  material  to  the  purchaser  or  was  of  the 
essence  of  the  contract.62 

A  title  founded  upon  adverse  possession  will  not  be  marketable 
unless  sufficient  time  has  elapsed  to  bar  the  rights  of  any  person 
who  was  under  disabilities,  such  as  infancy  or  coverture,  when 
the  cause  of  action  accrued.53  Generally  the  Statutes  of  Limita- 
tions in  the  several  States  specify  a  time  within  which  a  person 
whose  disabilities  have  been  removed,  must  assert  his  rights,  and 
in  some  of  the  States  it  is  provided  that  in  no  case,  including  such 
additional  period,  shall  the  period  of  limitation  exceed  a  specified 
number  of  years.  Under  such  a  statute  it  has  been  held  that  the 
possibility  of  a  claim  by  a  person  under  disabilities  could  not 
render  the  title  doubtful  where  the  extreme  period  of  limitation 
had  elapsed.54  If  it  may  be  fairly  inferred  from  the  abstract  that 
a  defect  arising  before  the  period  at  which  the  abstract  commences, 
exists,  the  purchaser  may  require  that  the  title  before  that  time 

«Shriver  v.  Shriver,  86  N.  Y.  575. 

18  2  Sugd.  Vend.  (8th  Am.  ed.)  104;  Wms.  Real  Prop.  (Am.  ed.  1886)  45i 
(355). 

"Wickliffe  v.  Lee,  6  B.  Mon.  (Ky.)  543.  Peers  v.  Barnett,  12  Grat.  (Va.) 
410. 

51  Post,  ch.  32.  Costs  will  be  decreed  against  the  vendor  in  such  case.  Peers 
v.  Barnett,  12  Gratt.  (Va.)  410. 

"Brown  v.  Cannon,  5  Gil.  (111.)  174.  Tevis  v.  Richardson,  7  B.  Mon.  (Ky.) 
654.  Simis  v.  McElroy,  160  N.  Y.  156;  54  N.  E.  Rep.  674.  Ford  v.  Wright, 
114  Mich.  122;  72  N.  W.  Rep.  197.  Baumeister  v.  Silver,  98  Md.  418;  56 
Atl.  825.  Wilhelm  v.  Federgreen,  38  N.  Y.  Supp.  8;  2  App.  Div.  483.  Fuhr 
v.  Cronin,  81  N.  Y.  Supp.  536;  82  App.  Div.  210. 

"Pratt  v.  Eby,  67  Pa.  St.  396;  Shober  v.  Button,  6  Phila.  (Pa.)  186.  Ot- 
tinger  v.  Strasburger,  33  Hun  (N.  Y.),  466;  N.  Y.  Steam  Co.  v.  Stern,  4i 
Hun  (N.  Y.),  206. 


OF    DOUBTFUL   TITLES.  743 

shall  be  shown ;  but  if  that  be  not  within  the  vendor's  power  the 
title  will  not  be  held  bad  upon  mere  suspicions.65 

If  the  vendor  set  up  title  under  the  Statute  of  Limitations,  the 
burden  will  be  upon  him  to  show  that  the  title  is  good.6*  It  will  be 
sufficient,  it  is.  apprehended,  for  him  to  show  an  exclusive,  adverse, 
notorious,  uninterrupted  and  hostile  possession  under  color  of  title 
for  the  statutory  period,  including  any  saving  in  favor  of  persons 
under  disabilities.  If  it  be  doubtful  whether  there  are  any  such 
persons,  and  he  be  unable  to  show  that  there  are  none  such,  the 
title  will  be  deemed  unmarketable.67  He  must  be  able  to  show, 
also,  that  there  are  no  persons  in  remainder  who  might  claim  the 
estate,  since  the  Statute  of  Limitations  does  not  begin  to  run,  as 
to  them,  until  the  determination  of  the  precedent  particular 
estate.68  It  has  been  held,  however,  that  if  the  vendor  shows  a 
title  prima  facie  good  under  the  Statute  of  Limitations,  the  burden 
will  devolve  upon  the  purchaser  to  show  facts  which  would  prevent 
the  running  of  the  statute.69 

In  some  jurisdictions  a  vendor,  relying  on  a  title  under  the 
Statute  of  Limitations,  will  be  permitted  to  join  the  persons  hold- 
ing the  apparent  legal  title  as  parties  defendant  in  his  suit  against 
the  purchaser  for  specific  performance,  and  have  their  claims  de- 
termined.60 If  this  practice  be  founded  upon  sound  principles,  no 

"1  Sugd.  Vend.  (8th  Am.  ed.)  552.  Seymour  v.  Delancey,  Hopk.  Ch. 
(N.  Y.)  436;  14  Am.  Dec.  552. 

"Luckett  v.  Williamson,  31  Mo.  54,  the  court  saying:  "A  party  making 
out  a  title  under  the  Statute  of  Limitations  must  show  it  to  be  good,  that  the 
court  may  determine  whether  it  shall  be  received.  It  is  not  for  the  purchaser 
to  contest  the  validity  of  such  a  title  with  the  vendor,  as  he  may  be  wholly 
ignorant  of  the  state  of  it."  Knedler  v.  Lang,  63  Hun  (N.  Y.),  48;  17  N. 
Y.  Supp.  443.  Wilhelm  v.  Federgreen,  38  N.  Y.  Supp.  8 ;  2  App.  Div.  483. 

"Brown  v.  Cannon,  5  Gil.  (111.)  174.  But  see  Day  v.  Kingsland,  57  N.  J. 
Eq.  134;  41  Atl.  99,  where  the  facts  were  held  sufficient  to  throw  the  burden 
of  proof  in  that  respect  upon  the  purchaser.  In  Seymour  v.  Delancey,  Hopk. 
Ch.  (N.  Y.)  436  (495)  ;  14  Am.  Dec.  552,  it  was  held  that  if  a  title  derived 
under  a  person  alleged  to  have  died  without  heirs,  be  clearly  adverse  for  a 
period  of  twenty-five  years,  it  will  not  be  rendered  unmarketable  by  the  possi- 
bility of  an  escheat  of  said  person's  estate  or  of  his  having  left  heirs  who 
are  under  disabilities. 

"Simis  v.  McElroy,  160  N.  Y.  156;  54  N.  E.  Rep.  674. 

"Phillips  v.  Day,  82  Cal.  24;  22  Pac.  Rep.  976,  citing  Shriver  v.  Shriver, 
SQ  N.  Y.  575. 

"Duvall  v.  Parker,  2  Duv.  (Ky.)   182.    Ante,  p.  723. 


744  MARKETABLE    TITLE    TO    REAL    ESTATE. 

reason  is  perceived  why  the  vendor  should  not  be  allowed  to  bring 
in  such  persons  and  adjudicate  their  rights  in  any  case  in  which 
it  is  objected  that  the  title  is  doubtful,  at  least,  in  any  case  in 
which  he  would  have  a  right  to  maintain  a  bill  against  such  per- 
sons to  quiet  his  title. 

As  a  general  rule  any  objection  to  the  title  which  is  cured  by 
the  Statute  of  Limitations  other  than  that  applicable  to  possessory 
actions,  or  by 'lapse  of  time,  constitutes  no  ground  upon  which  the 
purchaser  can  refuse  to  complete  the  contract,  if  the  case  admit 
of  no  reasonable  doubt  as  to  the  application  of  the  bar.  Thus  the 
existence  of  a  prior  executory  contract  for  the  sale  of  the  premises, 
the  benefit  of  which  had  passed  to  an  assignee  in  bankruptcy,  was 
held  no  valid  objection  to  the  title,  the  right  of  the  assignee  to 
enforce  the  contract  having  become  barred  by  lapse  of  time.*1 

The  purchaser  may  be  required  to  take  a  title  dependent  upon 
the  Statute  of  Limitations,  though  the  vendor  did  not  inform  him, 
at  the  time  of  the  contract,  of  the  character  of  the  title,  and  fur- 
nish him  with  proof  of  its  sufficiency.62 

§  293.  PRESUMPTIONS  FROM  LAPSE  OF  TIME.  Independently 
of  the  Statute  of  Limitations,  possession  by  the  vendor  and  his 
predecessors  in  title,  for  a  great  length  of  time  has,  in  some  cases, 
been  held  to  raise  a  conclusive  presumption  of  a  grant  or  convey- 
ance, and  to  remove  any  doubt  or  uncertainty  as  to  the  title  which 
might  arise  from  the  inability  of  the  vendor  to  show  such  a  grant, 
or  to  supply  a  missing  link  in  the  record  chain  of  title.63  There 

0  Holmes  v.  Richards,  67  Ala.  577. 

"Kahn  v.  Mount,  61  N.  Y.  Supp.  358;  46  App.  Div.  84. 

43  English  cases  cited,  ante,  p.  737,  note  1.  1  Sugd.  Vend.  (8th  Am.  ed.) 
41,  584;  2  id.  101;  Atk.  Mark.  Titles,  396,  403.  O'Connor  v.  Hudgins,  113 
N.  Y.  511,  521;  21  N.  E.  Rep.  184.  Brassfield  v.  Walker,  7  B.  Mon.  (Ky.) 
96;  Logan  v.  Bull,  78  Ky.  607,  614.  To  make  good  a  title  to  the  residue  of 
an  old  term,  mesne  assignments  which  cannot  be  produced  will  be  presumed 
to  exist.  White  v.  Foljambe,  11  Ves.  344.  A  title  may  be  good  though 
there  are  no  deeds,  but  there  must  have  been  such  a  long  uninterrupted  pos- 
session, enjoyment  and  dealing  with  the  property  as  to  afford  a  reasonable 
presumption  that  there  is  an  absolute  title  in  fee  simple.  1  Sugd.  Vend. 
(8th  Am.  ed.)  41;  2  id.  101.  The  court  will  presume  that  the  wives  of 
grantors  in  ancient  deeds  —  those  more  than  thirty  years  old  —  are  dead,  and 
the  property  is  free  from  their  claims.  Jarboe  v.  McAtee,  7  B.  Mon.  (Ky.) 
279.  In  the  same  case  it  was  held  that  an  agent's  authority  to  convey  would 
be  presumed  after  fifty  years.  A  grant  from  the  Commonwealth  will  be 


OF    DOUBTFUL   TITLES.  745 

Have  been  cases,  also,  in  which  the  courts  have  held  that  rights  of 
third  persons  which,  if  asserted  in  due  season,  might  have  raised 
insuperable  objections  to  the  sufficiency  of  the  title,  but  which 
have  been  lost  by  lapse  of  time,  furnish  no  ground  on  which  to 
hold  the  title  unmarketable.64  And  a  purchaser  has  in  some  cases 
been  compelled  to  take  a  title  dependent  for  its  validity  upon  a 
presumption  of  the  death  of  a  person  interested  in  the  estate, 
arising  from  such  person's  absence  for  many  years  without  having 

presumed  after  forty  years'  adverse  possession.  Henderson  v.  Perkins,  94 
Ky.  207;  Jarboe  v.  McAtee,  7  B.  Mon.  (Ky.)  279.  3  Starkie  Ev.  1221;  1 
Greenl.  Ev.  50.  In  Abrams  v.  Rhoner,  44  Hun  (N.  Y.),  507,  it  appeared  that 
B.,  through  whom  the  vendor  claimed,  under  a  deed  executed  in  179",  had 
made  a  prior  conveyance  of  the  same  premises,  in  1771,  to  parties  other  than 
those  through  whom  the  vendor  claimed  title,  and  there  was  no  evidence  that 
the  title  acquired  under  B/s  conveyance  in  1771  had  ever  passed  back  to  him, 
or  vested  in  any  other  of  the  vendor's  predecessors  in  title.-  But  those  under 
whom  the  vendor  claimed  had  been  in  possession  since  1797,  and  none  of  the 
grantees  named  in  the  deed  of  1771  had  ever  been  in  possession  of,  or  made 
any  claim  to,  the  premises,  and  no  conveyance  by  thorn  to  any  person  had 
ever  been  found.  Held,  that  the  title  of  the  vendor  was  marketable,  it  being 
conclusively  presumed  that  the  grantees  in  the  deed  of  1771  had  reconveyed 
to  B.  before  he  conveyed  in  1797,  or  that  the  conveyance  of  1771  had,  for  some 
reason,  never  taken  effect. 

"A.  S.  Abell  Co.  v.  Firemen's  Insurance  Co.,  93  Md.  596;  49  Atl.  334.  In 
this  case  it  appeared  that  a  leasehold  interest,  under  a  lease  for  99  years 
expiring  in  1870  but  renewable  during  the  term,  was  sold  under  decree  in  a 
suit  for  partition  in  1852,  but  the  sale  was  void  as  to  the  one-fourth  interest 
of  a  person  who  had  not  been  made  a  party  to  the  proceeding.  In  1887, 
after  the  expiration  of  the  lease,  the  purchaser  at  the  partition  sale  pro- 
cured a  renewal  from  the  owner  of  the  fee  and  in  1897  he  purchased  the  fee. 
Afterwards  he  contracted  to  sell  the  property,  but  it  was  objected  against 
his  title  that,  by  the  law  of  the  State,  the  lessor  who  forfeits  his  right  to 
renew  by  failure  to  renew  during  the  term  is  entitled  to  relief  in  equity 
against  the  forfeiture  and  hence  that  the  owner  of  the  one-fourth  interest 
in  the  lease,  which  had  been  illegally  sold  at  the  partition  sale  in  1852,  not 
being  bound  by  that  sale,  was  entitled  in  equity  to  relief  against  the  for- 
feiture, and  to  demand  a  renewal  of  the  lease.  But  it  appearing  that  such 
owner  had  left  the  state  long  before  the  sale ;  that  he  had  never  made 
a  claim  to  any  interest  in  the  lease;  that  he  died  in  1853,  the  year  after  the 
sale;  that  his  heirs  never  recognized  their'  liability  to  pay  rent  to  the  owner 
of  the  fee;  and  that  more  than  thirty  years  had  elapsed  since  their  right  to 
relief  in  equity  against  the  forfeiture  of  the  privilege  of  renewing  the  lease 
had  accrued,  without  any  assertion  of  that  right  on  their  part,  the  court  held 
that  if  they  were  now  to  claim  that  right  they  would  not  be  entitled  to  a 
hearing,  and  hence  that  the  purchaser's  objection  to  the  title  could  not  be 
sustained. 


746  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

been  heard  from  in  the  meanwhile.  But  such  absence  must  have 
continued  for  a  length  of  time  sufficient  to  remove  any  doubt  that 
the  absentee  is  dead.65  And  it  is  apprehended  that  the  circum- 
stances must  be  such  as  to  show,  beyond  a  reasonable  doubt,  that 
he  died  unmarried,  intestate  and  without  issue.  Generally  it  may 
be  said  that  wherever  a  sufficient  length  of  time  has  elapsed  to 
raise  a  conclusive  presumption  of  the  existence  of  any  fact,  a  title 

w  PRESUMPTIONS  OF  DEATH,  ETC. —  Titles  not  marketable.  Whether  a  cer- 
tain person  having  an  interest  in  the  premises,  who  had  disappeared  and  had 
not  been  heard  from  for  twenty-four  years,  was  dead,  unmarried,  without  issue 
and  intestate.  Vought  v.  Williams,  120  N.  Y.  253;  24  N.  E.  Rep.  195.  Seven 
years,  McDermott  v.  McDermott,  3  Abb.  Pr.  (N.  S.)  (N.  Y.)  451.  Trimmer 
v.  Gorman,  129  N.  C.  161;  39  S.  E.  Rep.  804.  Thirty  years,  Dworsky  v.  Arndt- 
stein,  51  N.  Y.  Supp.  597;  29  App.  Div.  274.  Fourteen  years,  Fowler  v. 
Manheimer,  75  N.  Y.  17;  70  App.  Div.  56.  Thirty-five  years,  Chew  v.  Tome, 
93  Md.  244;  48  Atl.  701.  Whetlfer  certain  persons  were  the  only  heirs  of  a 
decedent.  Walton  v.  Meeks,  41  Hun  (N.  Y.),  311.  A  title  founded  upon  a 
decree  in  a  suit  for  specific  performance  against  the  heirs  of  a  vendor,  is 
unmarketable  when  it  appears  that  one  of  the  heirs,  a  married  woman,  not 
a  party  to  the  suit,  was  dead  when  the  decree  was  made.  The  court  will  not 
presume  that  she  died  intestate  and  without  issue,  and  that  her  interest 
vested  in  the  other  heir.  Hays  v.  Tribble,  3  B.  Mon.  (Ky.)  106.  Titles  held 
marketable.  Whether  a  certain  person  having  an  interest  in  the  premises, 
who  had  disappeared  and  had  not  been  heard  from  for  more  than  forty  years, 
had  died,  unmarried,  without  issue  and  intestate.  Ferry  v.  Sampson,  112 
N.  Y.  415;  20  N.  E.  Rep.  387;  McComb  v.  Wright,  5  Johns.  Ch.  (N.  Y.)  263. 
Demarest  v.  Friedman,  70  N.  Y.  Supp.  816;  61  App.  Div.  576.  Day  v.  Kings- 
land,  57  N.  J.  Eq.  134;  41  Atl.  99.  See,  also,  Burton  v.  Perry,  (111.)  34  N. 
E.  Rep.  60.  Whether  the  facts  in  a  certain  case  were  sufficient  to  sustain 
a  title  by  escheat  for  want  of  heirs.  In  re  Trustees  N.  Y.  P.  E.  Pub.  School, 
31  N.  Y.  574,  587.  In  Meyer  v.  Madreperla,  (N.  J.  L.),  53  Atl.  477,  the 
purchaser  rejected  the  title  offered  and  sued  to  recover  his  deposit.  The 
objection  to  the  title  was  an  outstanding  interest  in  a  sailor  who  left  his 
home  in  1879  and  had  not  been  heard  from  for  twenty  years.  It  was  held, 
under  a  New  Jersey  statute  providing  that  a  person  absenting  himself  and 
not  heard  from  for  seven  years,  must  be  presumed  to  be  dead,  that  the  objec- 
tion to  the  title  was  untenable.  The  statute  was  held  to  raise  a  conclusive 
presumption  of  the  death  of  the  absentee.  The  court  said  that  this  presump- 
tion was  accompanied  by  another,  namely,  that  he  died  without  lawful  issue. 
The  questions  of  marriage  and  intestacy  were  not  considered.  In  Cambrelleng 
v.  Purton,  125  N.  Y.  610,  26  N.  E.  Rep.  907,  the  purchaser  did  not  dispute  the 
presumption  of  the  death  of  the  absentee,  but  contended  that  there  was  no 
presumption  that  he  died  unmarried  and  without  issue  before  the  death  of  his 
father,  whose  estate,  embracing  the  premises  sold,  was  partitioned  after  pub- 
lication of  notice  against  the  absentee.  The  evidence  was  thought  sufficient 
to  justify  both  presumptions. 


OF    DOUBTFUL   TITLES.  747 

dependent  upon  that  fact  will  be  deemed  marketable."  Thus, 
under  the  rule  that  ancient  deeds  coming  from  the  proper  custody 
require  no  proof,  a  title  thence  derived  could  not,  it  is  appre- 
hended, be  disputed  upon  the  ground  that  the  deeds  are  not  shown 
to  have  been  duly  executed. 

To  a  certain  extent,  every  title  depends  upon  rebuttable  pre- 
sumptions. It  has  already  been  observed  that  when  the  vendor 
shows  a  record  or  documentary  title  in  himself,  the  existence  of 
all  matters  in  pais  necessary  to  the  validity  of  that  title,  such  as 
the  competency  of  grantors  through  whom,  and  the  bona  fides  of 
conveyances  through  which,  the  title  is  derived,  will  be  presumed, 
until  the  purchaser  shows  that  there  is  ground  for  reasonable 
doubt  in  respect  to  any  such  matter.67  If  this  were  not  true,  and 
a  vendor  could  be  required  to  show  that  everything  which  could 
possibly  invalidate  his  title,  has  no  existence  in  fact,  there  would 
practically  be  no  such  thing  as  specific  performance  at  the  suit  of 
the  vendor;  he  would  be  required  to  prove  an  infinite  number  of 
negatives,  a  thing  as  impracticable  as  it  would  be  unreasonable. 

§  294.  TTTLE  AS  AFECTED  BY  NOTICE.  As  a  general  rule  a 
purchaser  cannot  be  compelled  to  perform  the  contract  when  the 
vendor's  title  depends  upon  a  question  of  notice  of  the  rights  of 
third  parties. cs  Thus,  though  a  purchaser  with  notice,  it  has  been 
held,  may  safely  buy  from  a  purchaser  without  notice,  he  will  not 
be  compelled  to  take  the  title,  as  he  would  incur  the  risk  of  notice 

Torsyth  v.  Leslie,  77  N.  Y.  Supp.  826;  74  App.  Div.  517.  In  Lyman  v. 
Gedney,  114  111.  388;  20  N.  E.  Rep.  282,  the  grantors,  in  a  conveyance  of 
property  which  belonged  to  a  partnership,  were,  after  the  lapse  of  forty  years, 
presumed  to  have  been  the  persons  composing  the  firm,  the  conveyanc  itself 
being  silent  upon  that  point. 

"  Ante,  §  289.     Braun  v.  Vollmer,  85  N.  Y.  Supp.  319. 

*  Questions  of  Notice.  In  the  following  cases  titles  dependent  upon  the 
existence  of  notice  of  the  rights  of  third  persons  were  held  unmarketable. 
Whether  a  certain  person  through  whom  the  vendor  claimed,  was  a  purchaser 
without  notice  of  the  equitable  rights  of  a  stranger  in  the  premises,  under  a 
contract  of  sale:  Morris  v.  McMillen,  3  A.  K.  Marsh.  (Ky.)  565.  Whether 
a  grantee  of  lands  took  with  notice  of  certain  liens  upon  the  premises: 
Freer  v.  Hesse,  4  DeG.,  M.  &  G.  495.  Whether  a  purchaser  without  notice 
under  a  foreclosure  sale,  was  affected  by  notice  to  the  plaintiff  in  the  fore- 
closure suit:  Wagner  v.  Hodge,  34  Hun  (N.  Y.),  524.  Whether  a  subsequent 
purchaser  had  notice  of  a  prior  unrecorded  deed  of  the  premises:  Speakman 
v.  Forepaugh,  44  Pa.  St.  363. 


748  MABKETABLE    TITLE    TO   JBEAL    ESTATE. 

to  his  vendor  being  proved.69  But  the  mere  liability  of  a  deed 
in  the  vendor's  chain  of  title  to  be  attacked  as  having  been  executed 
under  circumstances  that  would  render  it  invalid,  does  not  render 
the  title  doubtful,  if  the  purchaser  be  such  in  good  faith,  for  value, 
and  without  notice  of  the  invalidity  of  the  deed.70  We  have  al- 
ready seen  that  a  doubt  as  to  the  title  resting  not  on  proof  or  pre- 
sumption, but  on  a  mere  suspicion  of  mala  fides,  will  not  condemn 
the  title  as  unmarketable.70* 

§  295.  BURDEN  OF  PROOF.  Inasmuch  as  the  purchaser  may 
suffer  a  heavy  loss  if  compelled  to  take  a  doubtful  title,  and  the 
vendor  can  suffer  only  the  temporary  inconvenience  of  delay  if 
his  title  be  good  and  the  purchaser  be  relieved,  the  inclination  of 
the  court  is  in  favor  of  the  purchaser,  and  the  burden  devolves 
upon  the  vendor  to  show  a  title  free  from  all  reasonable  doubt.71 
This  means,  it  is  apprehended,  no  more  than  that  the  vendor  must 
show  in  the  first  instance  a  title  free  from  doubt  so  far  as  dis- 
closed by  the  public  records,  or  the  instruments  which  evidence  the 
title.  The  competency  of  the  maker  of  every  deed  or  will  in  the 
chain  of  title  is  necessary  to  the  validity  of  that  title,  but  it  is 
plain  that  the  vendor  cannot  be  required  to  establish  such  com- 
petency affirmatively  before  it  is  questioned  by  the  purchaser. 
The  same  observation  applies  to  other  matters  in  pais  affecting 

»1  Sugd.  Vend.  (8th  Am.  ed.)  590,  601.  Freer  v.  Hesse,  4  De  G.,  M.  &  G. 
495.  In  Bott  v.  Malloy,  151  Mass.  477;  25  N.  E.  Rep.  17,  suggestions  of  a 
latent  trust  affecting  the  premises  in  the  hands  of  the  vendor  were  held  in- 
sufficient to  render  the  title  doubtful,  in  view  of  a  statute  declaring  trusts 
invalid  as  against  a  purchaser  without  notice. 

'•Levy  v.  Iroquois  Building  Co.,  (Md.)  30  Atl.  Rep.  707.  The  fact  that  a 
prior  grantee  of  the  premises  claims  that  a  deed  thereof  had  been  obtained 
from  him  by  fraud,  he  having  waited  more  than  six  years  without  making 
any  effort  to  recover  the  land,  does  not  render  the  title  unmarketable.  First 
Af.  M.  E.  Church  v.  Brown,  147  Mass.  296;  17  N.  E.  Rep.  549. 

"a  Ante,  §  285.     Prop.  VI. 

71  Burroughs  v.  Oakley,  3  Swanst.  159.  Hendricks  v.  Gillespie,  25  Grat. 
(Va.)  181,  197,  citing  Sturtevant  v.  Jaques,  14  Allen  (Mass.),  523;  Rich- 
mond v.  Gray,  3  Allen  (Mass.),  25,  and  Griffin  v.  Cunningham,  19  Grat.  (Va.) 
571.  McAllister  v.  Harmon,  101  Va.  17;  42  S.  E.  Rep.  920.  Upton  v.  Maurice 
(Tex.  Civ.  App.)  ;  34  S.  W.  Rep.  642.  In  Espy  v.  Anderson,  14  Pa.  St.  308, 
it  was  held  that  it  was  the  purchaser's  business  to  show  that  the  title  was 
doubtful.  He  should  at  least  be  required  to  point  out  in  what  respect  or 
particulars  the  title  is  doubtful,  leaving  to  the  vendor  the  burden  of  remov- 
ing the  doubt. 


OF    DOUBTFUL   TITLES.  749 

the  validity  of  the  title,  except,  it  is  presumed,  that  wherever  a 
break  occurs  in  the  record  chain  of  title,  such  as  would  be  caused 
by  descent,  or  by  a  parol  partition  at  common  law,  the  vendor  must 
show  facts  sufficient  to  supply  the  breach.  The  abstract  should 
contain  affidavits  showing  the  essential  facts.  But  after  the  ven- 
dor has  shown  a  title  presumptively  good,  the  burden  devolves  on 
the  purchaser  to  show  wherein  it  is  bad  or  doubtful."  And  there 
are  cases  which  go  farther  and  hold  that  when  the  purchaser  enters 
into  a  contract  for  the  sale  of  lands  in  which  the  ownership  of  the 
vendor  is  assumed,  and  agrees  to  pay  the  purchase  money,  but 
floes  not  require  the  vendor  to  show  a  good  title,  the  general  rule 
is  that  the  burden  is  on  the  purchaser  to  show  defects  in  the  title 
if  he  seeks  to  avoid  the  contract.  The  prima  facie  presumption 
is  that  he  satisfied  himself  as  to  the  sufficiency  of  the  title  before 
entering  into  the  contract.73 

§  295-a.TESTIMONY  OF  EXPERTS  INADMISSIBLE.  The  question 
whether  the  title  is  one  which  the  purchaser  should  be  compelled 
to  take,  is  one  of  law,  to  be  determined  by  the  court  from  the  con- 
tract; and  it  is  error  to  admit  the  testimony  of  attorneys  and 
examiners  of  title  upon  that  point.74 

§  296.  ILLUSTRATIONS  OF  THE  FOREGOING  PRINCIPLES.  The 
English  and  American  law  reports  abound  with  cases  illustrating 
the  principles  discussed  in  this  chapter.  A  large  number  of  the 
English  cases  have  been  collected  and  referred  to  very  briefly  and 
concisely  by  Lord  St.  Leonards,  in  his  work  on  ^rendo^9  and  Pur- 
chasers.76 Many  of  these  are  comparatively  of  little  value  to  tho 
American  lawyer,  depending,  as  they  do,  upon  questions  of  law 
peculiar  to  the  English  system  of  conveyancing  and  settlement  of 
estates,  and  laws  of  real  property,  and  it  is,  therefore,  deemed 
unnecessary  to  reproduce  them  here.  But  it  is  believed  that  a  col- 
lection of  American  cases,  stated  in  the  same  concise  manner,  will 

"Stevenson  v.  Polk,  71  Iowa,  278;  32  N.  W.  Rep.  340.  Phillips  v.  Day. 
82  Cal.  24;  22  Pac.  Rep.  976.  Bank  v.  Loujrl'ran.  122  NT.  C.  668;  30  S.  E. 
Rep.  17. 

73  Baxter  v.  Aubrey,  41  Mich.  16;  1  N.  W.  Rop.  897.  citing  Dwight  v.  Cutter, 
3  Mich.  566;  64  Am.  Dec.  105;  Allen  v.  Atkinson,  21  Mich.  361. 

74  Ante,  §  283.     Evans  v.  Gerry,  174  111.  595;  51   N.  E.  Rep.  615;  Moaer  T. 
Cochrane,  107  N.  Y.  35;  13  N.  E.  Rep.  442. 

"1  Sugd.  Vend.    (8th  Am.  ed.)   583   (389). 


750  MARKETABLE    TITLE    TO    REAL    ESTATE, 

be  found  useful  to  the  profession.  No  attempt  has  been  made  to 
separate  the  cases  in  which  the  doubt  turned  upon  a  question  of 
law  from  those  turning  upon  doubtful  questions  of  fact;  the  effort 
has  been  rather  to  arrange  the  cases  in  groups,  having  reference 
to  the  sources  from  which  objections  to  title  most  frequently  spring. 
It  will  probably  be  found  that  in  many  of  the  cases  cited  the  title 
was  not  only  unmarketable  or  doubtful  but  absolutely  bad.  Thus, 
it  is  sometimes  said  that  a  title  derived  through  a  conveyance  exe- 
cuted by  a  married  woman  without  the  precise  forms  and  solemni- 
ties required  by  statute  in  such  cases  is  not  "  marketable."  It  is 
plain,  however,  that  such  a  title  is  not  only  doubtful  or  unmarket- 
able, but  is  absolutely  bad,  for  such  an  instrument  is  utterly  invalid 
and  inoperative  to  convey  the  woman's  right.  If,  however,  a  grave 
doubt  should  arise  as  to  whether  there  had  been,  in  fact,  a  suffi- 
cient compliance  with  those  requisites,  and  the  court  should  be  of 
opinion  that  another  judge,  or  competent  person,  might  well  differ 
with  him  upon  the  point,  then  the  title  would  be,  in  a  technical 
sense,  not  "  marketable,"  that  is,  doubtful.  But  inasmuch  as  all 
bad  titles  are  necessarily  not  marketable  in  the  sense  that  pur- 
chasers cannot  be  compelled  to  accept  them,  it  is  apprehended  that 
no  inconvenience  will  result  from  the  want  of  technical  precision 
in  the  use  of  the  term  "  marketable,"  if  any  instance  thereof 
should  be  perceived. 

Defects  of  title,  with  respect  to  the  manner  in  which  they  are 
disclosed,  are  obviously  of  three  kinds,  namely:  (1)  Those  which 
appear  upon  the  face  of  some  instrument  under  which  title  is 
claimed,  such,  for  example,  as  the  want  of  proper  words  of  con- 
veyance, or  other  essential  requisites  of  a  deed,  such  as  a  grantor, 
or  a  grantee,  or  a  seal,  or  a  sufficient  certificate  of  acknowledg- 
ment, and  other  matters  of  like  kind.  (2)  Those  which  appear 
from  the  public  records ;  such  as  a  prior  conveyance  to  a  stranger ; 
or  the  absence  of  any  record  title  whatever;  or  the  want  of  juris- 
diction of  the  subject-matter  in  judicial  proceedings.  (3)  Those 
which  rest  in  parol ;  that  is,  to  be  established  by  the  testimony  of 
witnesses,  such  as  the  happening  of  events  upon  which  title  de- 
pends, for  example,  births,  deaths,  marriages,  adverse  possession, 
the  performance  or  happening  of  conditions  antecedent  or  subse- 
quent, the  vesting  of  contingent  remainders,  and  the  like.  Cases 


OF   DOUBTFUL   TITLES.  751 

arising  from  each  of  these  sources  will  be  found  in  the  preceding 
pages,  and  in  the  notes  which  follow  here. 

§  297.  Errors  and  irregularities  in  judicial  proceedings.  Er- 
rors, defects  and  irregularities  in  judicial  proceedings,  directly  or 
incidentally,  for  the  sale  of  lands,  are  the  occasion,  perhaps,  of 
more  objections  to  title  than  any  other  ground ;  certainly,  in  cases 
in  which  confirmation  of  the  sale  is  resisted  by  the  purchaser.  In 
the  consideration  of  such  objections  an  important  rule  should  be 
constantly  borne  in  mind,  namely,  that  no  error,  defect  or  irregu- 
larity in  the  proceedings,  short  of  absolute  want  of  jurisdiction  on 
the  part  of  the  court,  or  fraud  or  mistake,  to  an  extent  that  would 
vitiate  the  proceedings,  can  affect  the  title  of  the  purchaser.  The 
reasons  for  this  rule  are  chiefly  two:  first,  because  upon  reversal 
of  a  judgment  for  error,  a  purchaser  under  the  judgment  cannot 
be  disturbed  in  his  title  and  possession,  there  being  only  restitu- 
tion of  the  proceeds  of  the  sale  to  the  person  aggrieved ;  and, 
second,  because  the  judgment  under  which  the  sale  or  conveyance 
to  the  purchaser  was  made,  cannot  be  attacked  in  any  collateral 
proceeding,  by  a  party  or  privy  to  the  judgment,  except  for  want 
of  jurisdiction  to  render,  or  fraud  or  mistake  in  the  procuration 
or  rendition  of  the  judgment.76  It  may  be  doubted  whether  in 
every  instance,  cited  in  the  notes  below,  in  which  the  purchaser 
has  been  relieved  from  his  bid  or  his  bargain,  on  the  ground  of 
errors  and  defects  in  judicial  proceedings  rendering  the  title  un- 
marketable, the  decision  will  stand  the  test  of  the  foregoing  rule, 
inasmuch  as  there  is  no  broad  line  of  demarcation  between  facts 
which  are,  and  those  which  are  not,  sufficient  to  show  jurisdiction 
in  the  premises.  It  is  true  that  most  of  the  cases  in  which  the 
rule  that  a  title  under  a  judicial  sale  is  not  subject  to  collateral 
attack,  have  been  those  which  arose  in  ejectment  by  parties  to  the 
judgment  or  their  privies,  against  the  purchaser  or  his  privies, 
and  not  between  vendor  and  purchaser ;  but  it  is  apprehended  that 
the  rule  would  be  the  same  in  either  case,  and  that  a  title  would 
not  be  deemed  unmarketable  simply  because  of  some  error  or  irreg- 
ularity in  the  proceedings,  unless  there  was  a  reasonable  doubt  as 
to  whether  such  error  was  not  based  on  facts  showing  an  absolute 
want  of  jurisdiction  in  the  court.  Of  course  if  there  should  be 

"Ante,  §  4». 


<OJ  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

a  reasonable  doubt  whether  the  court  had  jurisdiction,  the  title 
would  be  unmarketable.  Purchasers  at  judicial  sales  may  always 
before  confirmation  of  the  sale  object  that  the  title  is  doubtful  or 
unmarketable,  as  well  as  absolutely  bad.77  As  a  general  rule  no 
such  objection  will  be  permitted  after  the  sale  has  been  con- 
firmed.78 The  defects  of  which  the  purchaser  complains  must  be 
serious  and  real.  Mere  irregularities  in  judicial  proceedings, 
through  which  the  title  passed,  capable  of  amendment  or  correc- 
tion, will  be  no  ground  upon  which  to  release  him  from  his  con- 
tract.79 Nor  will  the  purchaser  be  relieved  if  he  made  his  bid  with 
knowledge  that  the  title  was  open  to  doubt,  even  though  his  objec- 
tion be  made  before  confirmation  of  the  sale.80 

And  it  has  been  held  that  a  purchaser  at  a  sale  in  partition  can- 
not object  that  the  title  is  doubtful.  The  reason  given  was  that  if 
actual  partition  had  been  made  the  several  partitioners  could  not 
have  objected  to  the  title,  each  partitioner  taking  his  allotment 
cum  onere*1  If  the  proceedings  in  a  suit  in  which  a  judicial  sale 

"Wilson  v.  White,  109  N.  Y.  59;  15  N.  E.  Rep.  749;  Shriver  T.  Shriyer, 
86  N.  Y.  575;  Jordan  v.  Poillon,  77  N.  Y.  518;  Williamson  v.  Field,  2  Sandf. 
Cli.  (N.  Y.)  533;  Lee  v.  Lee,  27  Hun  (N.  Y.),  1;  McCahill  v.  Hamilton,  20 
Hun  (N.  Y.),  388;  Argall  v.  Raynor,  20  Hun  (N.  Y.),  567.  Cox  T.  Cox,  18 
Dist.  Col.  1. 

"Ante,  §  45. 

"Dalzell  v.  Crawford,  1  Pars.  Sel.  Cas.  (Pa.)  37.  Moot  v.  Business  Men'i 
Asso.,  157  N.  Y.  201;  52  N.  E.  1.  An  order  directing  a  purchaser  at  a  ju- 
dicial sale  to  complete  the  purchase,  he  having  filed  specific  objections  to  the 
title,  does  not  conclude  the  purchaser  as  to  questions  of  title  not  submitted  to 
the  court.  Williamson  v.  Field,  2  Sandf.  Ch.  (N.  Y.)  533. 

"Ante,  §  45.  Stewart  v.  Devries,  (Md.)  32  Atl.  Rep.  285.  Binford's  Ap- 
peal, 164  Pa.  St.  435;  30  Atl.  Rep.  298. 

11  Sebring  v.  Mersereau,  9  Cow.  (N.  Y. )  344,  the  court  saying:  "Upon  a 
bill  for  specific  performance  of  a  contract  for  the  sale  of  real  estate  there  is 
no  doubt  that  a  court  of  equity  will  avoid  compelling  a  purchaser  to  take  a 
doubtful  title.  So,  also,  of  a  purchase  under  the  foreclosure  of  a  mortgage, 
and  analogous  cases.  But  in  partition  generally,  and  in  this  case  particu- 
larly, there  is  no  dispute  as  between  the  parties  about  the  title.  Their  rights 
are  determined  when  the  order  for  partition  is  made.  Suppose  actual  par- 
tition might  have  been  made  in  this  case;  no  notice  could  have  been  taken  of 
5 ncumb ranees.  Each  takes  the  share  allotted  to  him,  and  subject  to  such 
liens  as  exist  upon  it.  The  business  of  the  court  in  this  simple  suit,  is  not 
to  draw  into  discussion  various  and  conflicting  rights  and  equities  of  incum- 
brancers.  The  property  is  divided  cum  onere."  This  decision  is,  doubtless, 
sound,  where  the  objection  is  that  the  estate  is  incumbered,  assuming  that 


OF    DOUBTFUL   TITLES.  753 

is  had,  are  defective,  thereby  rendering  the  title  of  the  purchaser 
doubtful  or  unmarketable,  the  burden  of  causing  the  necessary 
steps  to  be  taken  in  the  suit  by  which  the  error  or  irregularity  in 
the  proceedings  will  be  cured,  devolves  on  the  plaintiff  in  the  suit. 
He  is  bound  to  see  that  the  action  has  been  brought  and  prosecuted 
in  accordance  with  the  provisions  of  law  regulating  the  procedure 
in  such  cases,  and  if  a  step  has  been  omitted  or  unseasonably  taken, 
thereby  invalidating  the  judgment  as  to  any  of  the  parties  in 
interest,  it  is  his  duty  to  apply  for  the  necessary  relief  by  way  of 
amendment  of  the  proceedings,  before  ho  can  insist  upon  the  pur- 
chaser's completing  the  purchase.82 

the  court  will  see  to  the  application  of  the  purchase  money  to  the  incum- 
brance.  But  it  is  difficult  to  perceive  any  reason  why  a  purchaser  at  a 
partition  sale  should  be  compelled  to  take  a  title  rendered  doubtful  by  the 
existence  of  adverse  claims  to  the  premises.  The  rule  caveat  emptor  applies 
to  such  a  sale,  and  if  he  should  be  evicted  he  would  have  no  remedy  over 
against  the  partitioners.  Ante,  p.  77. 

"Crouter  v.  Crouter,  133  N.  Y.  55;  30  N.  E.  Rep.  726.  This  was  a  suit 
for  partition  to  which  non-resident  infants  were  made  parties  defendant. 
The  court  appointed  a  guardian  ad  litem  for  them  before  jurisdiction  of  their 
persons  had  been  acquired  by  the  lapse  of  a  prescribed  period  after  service 
had  been  had  upon  them  by  order  of  publication.  This  was  held  an  error 
that  made  the  judgment  rendered  in  the  suit  voidable  by  the  infants.  The 
defect,  however,  was  curable  by  proper  proceedings  to  be  taken  for  that  pur- 
pose (presumably  in  the  same  suit),  and  this,  it  was  held,  the  plaintiff  was 
bound  to  do  before  he  could  compel  the  purchaser  to  proceed  with  the  con- 
tract. 

ERRORS  AND  IRREGULARITIES  IN  JUDICIAL  PROCEEDINGS. —  Titles  held  doubt- 
ful. A  purchaser  cannot  be  compelled  to  accept  a  title  depending  upon  a 
judicial  sale  under  an  erroneous  judgment  liable  to  be  reversed.  Young  v. 
Rathbone,  1  C.  E.  Green  (N.  J.),  224;  84  Am.  Dec.  151.  Want  of  affidavit  in 
proceedings  against  unknown  heirs  renders  the  title  doubtful.  Tevis  v.  Rich- 
ardson, 7  B.  Mon.  (Ky. )  654.  An  insufficient  printer's  certificate  of  publi- 
cation of  an  order  against  unknown  heirs,  makes  title  of  purchaser  at  judicial 
sale  doubtful.  Tevis  v.  Richardson,  7  B.  Mon.  (Ky.)  654.  Whether  a  pur- 
chaser can  be  compelled  to  accept  a  title  under  a  decree  against  unknown 
heirs.  Tevis  v.  Richardson,  7  B.  Mon.  (Ky.)  654.  Where  an  affidavit  for 
publication  of  summons  against  a  non-resident  failed  to  state  that  defendants 
could  not  be  found  after  due  diligence  title  of  purchaser  at  a  sale  under 
decree  against  such  defendants,  held  unmarketable.  Bixby  v.  Smith,  3  Hun 
(N.  Y. ),  60.  Whether  a  decree  setting  aside  a  fraudulent  conveyance,  and 
directing  a  sale  of  the  land,  could  be  enforced  by  fieri  f arias:  McCann  v. 
Edwards,  6  B.  Mon.  (Ky.)  208,  211.  Whether  more  property  had  been  sold 
under  a  mortgage  than  was  necessary  to  satisfy  the  debts  secured :  Hemmer 
v.  Hustace,  51  Hun  (N.  Y.),  457;  3  N.  Y.  Supp.  850.  Whether  a  married 

48 


MARKETABLE    TITLE    TO    REAL    ESTATE. 

The  mere  fact  that  the  right  of  appeal  from  a  judgment,  on 
which  the  title  depends,  has  not  expired,  does  not  render  the  title 
doubtful.83 

woman,  sued  with  her  husband,  was  competent  to  confess  a  judgment  bind- 
ing her  separate  estate:  Swayne  v.  Lyon,  67  Pa.  St.  436.  Whether  the 
Declaration  in  a  suit  against  husband  and  wife  for  materials  furnished  for  the 
improvement  of  the  wife's  separate  estate,  was  so  drawn  that  a  judgment  for 
the  plaintiff  by  confession  absolutely  concluded  the  wife  from  afterwards 
showing  that  the  materials  were  not  furnished  for  the  improvement  of  such 
estate :  Swayne  v.  Lyon,  67  Pa.  St.  436.  Whether  a  judgment  creditor, 
suing  to  set  aside  a  conveyance  from  husband  to  wife,  was  bound  by  an 
order  giving  leave  to  file  a  complaint  nunc  pro  tune  in  a  proceeding  to  which 
such  creditor  was  not  a  party,  so  as  to  antedate  the  filing  of  his  complaint. 
Weeks  v.  Tomes,  16  Hun  (N.  Y.),  349.  Whether  the  Special  Term  "of  the 
Supreme  Court  of  New  York  had  power  to  make  an  order  providing  for  ser- 
vice of  summons  by  publication:  Crosby  v.  Thedford,  13  Daly  (N.  Y.),  150. 
A  sale  of  the  land  of  a  non-resident  under  an  order  or  decree  of  court  is  void, 
if  publication  of  process  be  made  for  less  time  than  that  required  by  law. 
Jarboe  v.  McAtee,  7  B.  Mon.  (Ky.)  279.  Whether  a  lien  on  the  real  estate  of 
a  county  treasurer's  surety  attached  from  the  date  of  process  in  a  suit  on  the 
treasurer's  bond,  or  whether  it  attached  only  at  the  time  of  service  of  the 
process:  Snyder  v.  Spaulding,  57  111.  480.  Where  a  petition  for  the  sale  of 
real  estate,  the  object  of  which  is  to  defeat  a  contingent  remainder,  fails  to 
set  forth  such  purpose  as  required  by  the  statute  under  which  the  proceeding 
is  had,  the  title  of  a  purchaser  under  a  decree  in  such  cause  will  be  un- 
marketable :  Westhafer  v.  Koons,  144  Pa.  St.  26 ;  22  Atl.  Rep.  885.  Whether 
a  title  dependent  upon  the  action  of  the  court  in  amending,  ex  parte,  a 
summons  against  a  mortgagor,  who  had  been  summoned  under  the  wrong 
Christian  name,  was  marketable:  Stuyvesant  v.  Weil,  58  N.  Y.  Supp.  697; 
41  App.  Div.  551.  Where  the  record  in  a  suit  by  an  executor  for  leave  to  sell 
the  decedent's  lands,  failed  to  show  that  the  executor  had  executed  a  bond,  as 
required  by  law.  Taylor  v.  Chamberlain,  39  N.  Y.  Supp.  737 ;  6  App.  Div. 
38.  Whether  a  probate  court  in  Connecticut  had  power  to  sell  real  property 
for  payinent  of  debts  of  decedent  as  well  as  for  partition:  Taylor  v.  Chamber- 
lain, 39  N.  Y.  Supp.  737;  6  App.  Div.  38.  Whether  the  failure  of  the  judge 
to  sign  an  interlocutory  order  authorizing  sale  and  partition  was  such  an 
irregularity  as  affected  the  title  held  under  such  order:  Hecker  v.  Brown, 
104  La.  524;  29  So.  Rep.  23*2.  Wliether  a  foreclosure  sale  might,  under  the 
laws  of  Michigan  be  made  more  than  ten  years  after  a  decree  directing  the 
sale:  Walker  v.  Oilman,  127  Mich.  269;  86  N.  W.  Rep.  830.  Whether  a 
bill  by  a  grantor  to  set  aside  his  deed  on  the  ground  of  fraud  and  undue- 
influence,  was  lawfully  discontinued  by  his  committee  upon  his  death,  he 
having  been  adjudged  a  lunatic  before  his  death:  Stobert  v.  Smith,  184  Pa. 
34;  38  Atl.  1019.  Whether  a  decree  of  separation  between  parties  neither  of 
whom  was  a  resident  of  the  State,  was  valid,  so  as  to  authorize  the  wife  to 


Adami  v.  Backer,  60  N.  Y.  Supp.  683 ;  29  Misc.  93. 


OF    DOUBTFUL   TITLES.  755 

§  298.  Sales  of  the  estates  of  persons  under  disabilities.  The 
courts  exact  a  rigid  compliance  with  all  the  provisions  of  law  by 
which  sales  of  the  estates  of  infants,  or  other  persons  who  are 
not  sui  juris,  are  governed.  Such  sales  are  to  be  made  only  upon 
authority  obtained  in  judicial  proceedings  instituted  for  that  pur- 
pose, or  by  special  act  of  the  legislature,  and  the  statutes  in  most 

convey   dotal  property  free  of  the  rights  of  the  husband:     Carter  v.  Morris 
B.  &  L.  Asso.,  108  La.  143;  32  So.  Rep.  473. 

Titles  held  marketable. — Whether  a  deputy  clerk  has  power  to  administer 
oaths    in    a    suit    pending   before   the   court:      Mullins   v.    Porter,   4    Heisk. 
(Tenn.)   407.     Whether  a  failure  to  serve  a  summons  on  the  wife  in  a  suit 
to   foreclose  a   purchase-money  mortgage   executed  by   the   husband,   affected 
the  title  of  the  husband  as  purchaser  at  the  foreclosure  sale:     Watson  v. 
Church,  3  Hun   (N.  Y.),  80.     Whether  the  sanction  by  a  court  of  chancery 
of  a  sale  of  property  belonging  to  a  religious  corporation  validated  the  sale, 
•where   the  law  required  the  sanction  of  that  court  before  the  sale:     Dutch 
Church  v.  Mott,  7  Paige   (N.  Y.),  77.     Whether  a  petition  for  partition  of 
lands  need  be  sworn  to:     Martin  v.  Porter,  4  Heisk.    (Tenn.)   407.     Whether 
a  certain  advertisement  of  a  sale  under  a  mortgage  was  sufficient:     Streeter 
v.  Illsley,  151  Mass.  291;  23  N.  E.  Rep.  837.     Whether  the  failure  of  the 
court  to  appoint  an  attorney  to  represent  absent  heirs  in  a  suit  for  partition 
invalidated  the  title  of  a  purchaser  at  a  sale  in  such  suit:     Mather  v.  Lehman, 
(La.  Ann)    10  So.  Rep.  939.     Whether  the  improper  designation  of  unknown 
parties  in  a  summons,  rendered  the  title  doubtful :     Lenehan  v.  College,  etc., 
63  N.  Y.  Supp.  1033;  30  Misc.  378.     Whether  the  heirs  of  one  who  had  mort- 
gaged his  interest  in  a  trust  estate,  which  mortgage   was  foreclosed,  were 
entitled  to  notice  of  an  application  for  the  appointment  of  a  trustee  of  the 
estate:    Van  Wyck  v.  Richman,  68  N.  Y.  Supp.  473;  33  Misc.  404.     Wheth 
an  infant,  who  appeared  by  guardian  below,  was  bound  by  a  decree  rendered 
on  appeal  in  a  suit  by  the  vendor  for  specific  performance:     Early  v.  Doug- 
las, 23   Ky.  Law  R.  298;    62  S.  W.   Rep.  860.     The  fact  that  an  order  tor 
publication  of  summons  in  a  suit  for  partition  was  signed   only  with   t 
initials  of  the  judge,  is  no  sufficient  objection  to  the  title.     Volz  v.  Steiner, 
73  N.  Y.  Supp.   1006;  67  App.  Div.  504.     Verification  of  a  petition  for  ap- 
pointment of  a  guardian  ad  litem  before  a  notary,  who  was  attorney  in  the 
suit,  is  no  ground  of  objection  to  the  title  when  the  essential  facts  stated  i 
the   petition  appear   in   a  subsequent  affidavit  in  the  cause.     Baumeister   A 
Demuth,  82  N.  Y.  Supp.  831 ;   84  App.  Div.  394.     The  possibility  that  a  d 
cree,  under  which  the  vendor  holds,  may  be  opened  in  behalf  of  non-resider 
defendants,   is  no  objection  to  the  vendor's  title  if   the  proceedings  in  t 
cause  appear  to  have  been  regular.    Hays  v.  Tribble,  3  T.  B.  Mon.  (Ky.) 
As  to  what  irregularities  in  proceedings  before  a  surrogate  fnr  the  9 
decedent's  real  estate  for  the  payment  of  his  debts,  will  not  render  the  t 
doubtful,  see  Regney  v.  Coles,  6  Bos.    (N.  Y.)    479.      In  Stevenson   v 
71  Iowa,  278;  32  N.  W.  Rep.  340,  the  possibility  that  defendant* 
process  ha'd  been  served  by  publication,  would  appear  and  take  advantage  of 
an   irregularity   in  the  proceedings,  was  held  insufficient  to  make  the  1 
unmarketable. 


756  MARKETABLE    TITLE    TO    REAL    ESTATE. 

of  the  States  provide  that  the  pleadings  shall  show  the  necessity 
of  the  sale ;  that  they  shall  be  verified  by  the  oath  of  the  guardian, 
or  other  person,  and  that  no  sale  shall  be  directed  unless  the  alle- 
gations of  the  necessity  therefor  be  sustained  by  testimony  taken 
in  the  presence  of  a  guardian  ad  litem.  These  provisions  and 
others  of  like  character  go  to  the  jurisdiction  of  the  court,  and  if 
they  be  not  complied  with,  the  court  has  no  power  to  ftrder  a  sale. 
One  of  the  most  important  points  to  which  the  attention  of  the 
purchaser  must  be  directed  in  this  connection  is  that  the  person 
under  disabilities  shall  have  been  represented  by  guardian  ad 
litem,  or  other  appropriate  person,  in  the  proceeding  to  sell.  Even 
the  rights  of  unborn  children  must  be  protected  by  having  a  rep- 
resentative of  their  interests  before  the  court.81*  The  rule  that  a 
purchaser  will  not  be  compelled  to  take  a  doubtful  title  applies 
with  special  force  where  infants  are  not  concluded  by  the  judg- 
ment or  decree  in  proceedings  for  the  sale  of  lands  in  which  they 
are  interested.** 

It  has  been  held,  in  Xew  York,  that  the  legislature  has  power  to 
order  the  sale  of  separate  pieces  of  land  belonging  to  separate 
families  of  infants  severally  interested,  and  to  direct  the  proceeds 
to  be  brought  into  a  common  fund  for  partition,  and  that  a  title 
dependent  upon  a  sale  under  such  an  act  was  marketable.85  In  a 
case  in  Alabama  the  purchaser  denied  the  power  of  the  legislature 
to  authorize,  by  private  act,  the  sale  of  infants'  lands  by  their 
mother,  who  was  not  their  guardian,  but  the  court  held  that  the 
power  existed,  and  required  the  purchaser  to  take  the  title.8* 

•%  Holmes  v.  Wood,  (Pa.)  32  AtL  Rep.  54-  One  of  the  interests  sold  in  thi* 
ease  was  liable  to  open  to  admit  after-born  children,  and  there  being  no 
representative  of  such  prospective  interests  before  the  court,  the  title  of  * 
purchaser  at  a  sale  in  the  cause  was  held  doubtful. 

••James  v.  Meyer,  41  La.  Ann,  1100;  7  So.  Rep.  618. 

"  Ebling  v.  Dwyer,  149  X.  Y.  460;  44  N.  E.  155. 

"Munford  v.  Pearee,  70  Ala.  452. 

SALE  or  ESTAXT'S  ESTATE.  ETC. —  Titles  held  not  marketable.  Whether  the 
rights  of  an  infant  heir  of  a  mortgagor  were  concluded  by  an  illegal  sale 
under  the  mortgage:  Hemmer  v.  Hustace,  51  Hun  (X.  Y.),457;  3  X.  Y.  Supp. 
850.  Whether  want  of  personal  service  upon  certain  infant  defendants  in  parti- 
tion invalidated  a  judgment  therein  rendered:  Swain  v.  Fidelity  Ins.  Co.,  54  Pa. 
St.  455.  Whether  in  a  ease  in  which  there  was  no  jurisdiction  for  partition 
except  by  consent,  jurisdiction  could  be  given  by  consent  where  the  rights 


OF   DOUBTFUL  TITLES.  757 

§  299.  Want  of  parties  to  suits.  A  judgment  or  decree  is  in 
no  way  conclusive  upon  a  person  in  interest  who  was  not  a  party 
to  the  proceeding  in  which  such  judgment  or  decree  was  pro- 
of infants  were  involved:  Scheu  v.  Lehning,  31  Hun  (X.  Y.),  183.  Whether 
certain  irregularities  in  proceedings  for  the  sale  of  an  infant's  estate  vitiated 
the  title  of  the  purchaser:  Gill  v.  Wells,  59  Md.  492.  Whether  notice  of  a  tax 
sale  served  on  infant  owners  in  person  without  the  appointment  of  a  guardian 
ad  litem  was  sufficient  to  conclude  them:  Levy  v.  Newman,  50  Hun  (N.  Y.), 
438;  3  N.  Y.  Supp.  324.  Whether  a  judgment  in  a  suit  for  partition  of  an 
estate  among  devisees  barred  the  rights  of  unborn  children  in  remainder, 
the  judgment  nol  providing  for  their  protection:  Monarque  v.  Monarque, 
80  N.  Y.  320.  Whether  a  court  of  chancery  had  power  to  confirm  an  illegal 
sale  of  an  infant's  land  made  by  the  father:  Linkous  v.  Cooper,  2  W.  Va.  07. 
Whether  an  appearance  by  an  infant  in  partition  by  next  friend  instead  of  a 
guardian  ad  litem,  was  irregular  and  invalid:  Swain  v.  Fidelity  Ins.  Co., 
54  Pa.  St.  455.  Whether  the  appointment  of  a  guardian  ad  Utcm  for  an 
infant  defendant  in  a  certain  case  was  valid:  Uhl  v.  Laughran,  4  N.  Y. 
Supp.  827 ;  22  N.  Y.  St.  Rep.  459.  Whether  a  certain  conveyance  by  executors 
was  in  fraud  of  the  rights  of  infants  claiming  under  the  will:  Stevens  v. 
Banta,  47  Hun  (N.  Y.),  329.  Whether  a  guardian's  sale  of  the  lands  of  his 
ward  without  authority  was  validated  by  a  license  to  sell  afterwards  ob- 
tained: Williams  v.  Schembri,  44  Minn.  250;  46  N.  W.  Rep.  403.  Whether 
a  sale  of  an  infant's  estate  ostensibly  for  the  benefit  of  the  infant  but  really 
to  assist  another  to  get  possession  of  the  property  was  valid,  a  fair  price 
having  been  realized  for  the  property  and  no  fraud  intended :  Wienstock  v. 
Levison,  26  Abb.  N.  Cas.  (N.  Y.)  244;  14  N.  Y.  Supp.  64.  The  failure  of  a 
guardian  ad  litem  to  file  a  bond  with  the  clerk  in  proceedings  for  sale  of  an 
infant's  lands  cannot  be  cured  by  an  order  nunc  pro  tune,  made  without 
notice  to  the  infant  or  other  parties;  and  the  purchaser  cannot  be  required 
to  take  a  title  dependent  upon  the  validity  of  such  proceedings.  Walter  v. 
De  Graaf,  19-  Abb.  N.  Cas.  (N.  Y.)  406.  A  title  founded  on  a  decree  against 
an  infant  is  invalid,  since  the  infant  may  show  cause  against  the  decree  after 
arriving  at  majority.  Bryan  v.  Read,  1  Dev.  &  Bat.  Eq.  (N.  C.)  86.  This 
proposition,  it  is  believed,  should  be  limited  to  cases  in  which  there  is  reason- 
able ground  to  apprehend  that  the  infant  will  be  able  to  show  cause;  otherwise 
there  can  be  no  stability  of  titles  under  decrees  in  suits  to  which  there  were 
infant  defendants.  Whether  a  probate  judge  could  lawfully  grant  leave  to 
sell  "on  the  premises"  lands  of  minors  not  situated  in  a  city:  Home  v. 
Rogers,  113  Ga.  224;  38  S.  E.  Rep.  768.  The  fact  that  lands  of  an  intestate 
were  purchased  at  an  administrator's  sale,  partly  for  the  administrator's 
benefit,  tin-  rights  of  minor  heirs  of  the  intestate  being  involved,  renders  a 
title  held  under  such  sale  unmarketable.  Griffith  v.  Maxfield,  63  Ark.  548: 
39  S.  W.  Rep.  852. 

Titles  held  marketable. —  Whether  a  creditor  of  an  infant  was  competent 
to  act  as  his  next  friend  in  a  suit  for  partition :  O'Reilly  v.  Klnjr.  28  How. 
Pr.  (N.  Y.)  408.  Whether  the  appointment  of  a  guardian  ad  litrm  in  a  suit 
is  valid  when  it  does  not  appear  by  affidavit  that  the  infant  defendants  have 


758  MARKETABLE    TITLE   TO   EEAL   ESTATE. 

nounced.87  Hence  a  title  so  derived,  being  always  open  to  col- 
lateral attack,  is  not  only  doubtful,  but  absolutely  bad.  But  ques- 
tions frequently  arise  as  to  whether  certain  persons  were  necessary 
parties  to  proceedings  resulting  in  the  sale  of  lands.  Wherever 
such  persons  have  not  been  made  parties,  and  the  question 
•whether  their  presence  was  properly  dispensed  with,  admits  of 
reasonable  doubt,  either  upon  the  law  or  the  facts,  a  title  depend- 
ing upon  such  question  becomes,  in  a  technical  sense,  doubtful  or 
unmarketable,  and  such  as  a  purchaser  cannot  be  compelled  to 
take.88  Illustrations  will  be  found  in  the  notes  below.  The  mere 
non- joinder  of  persons  who  would  have  been  proper  parties  to  the 

no  regular  guardian:  Martin  v.  Porter,  4  Heisk.  (Tenn.)  407.  Whether 
a  guardian  ad  litem  for  an  infant  defendant  can  be  appointed  by  a  judge  at 
chambers:  Disbrow  v.  Folger,  5  Abb.'  Pr.  (N.  Y.)  53.  Whether  a  petition 
for  the  sale  of  an  infant's  estate  may  be  presented  by  the  parent  as  natural 
guardian  instead  of  by  next  friend:  Ex  parte  Whitlock,  32  Barb.  (N.  Y.) 
48.  Whether  a  clerical  error  in  the  date  of  an  affidavit  by  a  guardian  ad 
litem  in  a  suit  for  partition  vitiated  the  proceedings:  Martin  v.  Porter,  4 
Heisk.  (Tenn.)  407.  Whether  a  judgment  confirming  a  sale  in  partition  was 
conclusive  upon  infant  defendants:  Reed  v.  Reed,  46  Hun  (N.  Y.),  212. 
See,  also,  Scholle  v.  Scholle,  55  N.  Y.  Super.  Ct.  468.  Whether  the  legis- 
lature could  pass  a  special  act  authorizing  the  sale  of  certain  property  be- 
longing to  minors,  the  sale  being  for  their  benefit:  Munford  v.  Pearce,  70 
Ala.  452.  Whether  an  act  providing  for  substituted  service  was  binding  on 
unknown  infant  heirs :  Steinhardt  v.  Baker,  49  N.  Y.  Supp.  357 ;  25  App. 
Div.  197.  Whether  unknown  infants  would  be  bound  by  a  decree  for  sale 
by  a  referee  in  a  case  in  which  the  executors  were  empowered  by  the  will  to 
sell,  the  proceeding  not  being  the  ordinary  statutory  application  for  the 
sale  of  infants'  lands,  but  a  proceeding  for  other  relief  to  which  the  sale 
was  a  mere  incident.  Adami  v.  Backer,  60  N.  Y.  Supp.  683;  29  Misc.  93. 
Failure  of  the  records  to  show  title  out  of  an  executor,  and  the  possible 
existence  of  persons  under  disabilities  are  not  sufficient  objections  to  the  title, 
where  there  is  evidence  that  the  whole  of  the  testator's  realty  was  converted 
into  personality,  and  that  the  only  persons  who  could  lay  claim  to  the  prem- 
ises, received  their  shares  of  the  personalty.  Doll  v.  Pizer,  89  N.  Y.  Supp. 
277;  96  App.  Div.  194.  Where  husband  and  wife  wTere  parties  to  a  suit 
to  foreclose  a  mortgage,  and  the  husband  purchased  the  premises,  he  could 
not  object  that  the  appearance  of  his  wife,  an  infant,  by  attorney  instead  of 
guardian  ad  litem  was  such  an  error  as  made  the  title  unmarketable,  since 
her  dower  rights  were  unimpaired,  the  husband  being  the  purchaser.  Knight 
v.  Maloney,  4  Hun  (N.  Y.),  34.  Description  of  curatrix  as  "guardian"  in 
a  proceeding  for  the  sale  of  an  infant's  lands  does  not  impair  the  title. 
Mitchener  v.  Holmes,  (Mo.)  22  S.  W.  Rep.  1070. 

"Ante,  §  287. 

""Dworsky  v.  Arndtstein,  51  N.  Y.  Supp.  597;  29  App.  Div.  274. 


OF    DOUBTFUL   TITLES.  759 

suit,  but  were  not  absolutely  necessary  parties,  does  not,  in  every 
-instance,  create  a  sufficient  doubt  as  to  the  title.  Thus,  it  has 
been  held  that  the  non-joinder  of  the  heirs  of  a  decedent  as  defend- 
ants in  a  suit  to  enforce  a  mechanic's  lien  against  his  estate  did 
not  raise  a  tenable  doubt  as  to  the  validity  of  a  title  derived  under 
a  sale  in  such  suit,  in  the  absence  of  anything  to  show  that  there 
was  a  good  defense  to  the  suit.89  The  bare  possibility  that  there 
may  have  been  persons  who,  if  they  existed,  would  have  been 
necessary  parties  to  the  suit,  presents  no  objection  to  the  title. 
Therefore,  in  a  proceeding  for  partition  in  which  the  pleadings 
set  forth  certain  persons  as  heirs  entitled  to  partition,  it  was  held 
that  the  mere  fact  that  there  might  have  been  other  heirs  than 
those  stated  did  not  make  the  title  doubtful,  there  being  nothing 
to  show  that  such  other  heirs  had  probably  existed.90  Where  the 

MReece  v.  Haymaker   (Pa.),  30  Atl.  Rep.  404. 

"Greenblatt  v.  Hermann,  144  N.  Y.  13;' 38  N.  E.  Rep.  906. 

WANT  OF  PARTIES  —  Title  held  not  marketable.  Whether  a  sale  of  lands 
for  payment  of  a  decedent's  debts  was  valid  without  notice  of  the  proceed- 
ing to  the  heijs:  Littlefield  v.  Tinsley,  26  Tex.  353.  Whether  the  heirs  of 
A.  should  have  been  made  parties  to  a  suit  in  which  it  was  decided  that  a 
deed  was  made  to  A.  by  mistake:  Mead  v.  Altgeld,  33  111.  App.  373;  26 
N.  E.  Rep.  388.  Whether  a  tenant,  by  the  curtesy  of  an  undivided  interest 
in  mortgaged  premises,  should  have  been  made  a  party  to  a  proceeding  to 
foreclose  the  mortgage :  Hecker  v.  Sexton,  6  N.  Y.  State  Rep.  680.  Whether 
certain  children  having  an  interest  in  remainder  in  mortgaged  premises 
should  have  be"en  made  parties  to  a  suit  to  foreclose  the  mortgage:  Lockman 
v.  Reilly,  29  Hun  (N.  Y.),  434.  See,  also,  Moore  v.  Appleby,  108  N.  Y.  237; 
15  N.  E.  Rep.  377.  Whether  certain  contingent  remaindermen  should 
have  been  made  parties  defendant  to  a  foreclosure  suit :  Nodine  v.  Greenfield, 
7  Paige  (N.  Y.)  544;  N.  Y.  Sect.  &  Tr.  Co.  v.  Schomberg,  84  N.  Y.  Supp. 
359;  87  App.  Div.  262.  B.,  tenant  in  common  with  A.,  devised  his  interest 
to  his  wife  during  widowhood,  and  in  the  event  of  her  marriage,  then  to 
his  children.  B.'s  widow  and  A.  made  partition  of  the  estate  among  them- 
selves, but  B.'s  children  not  having  been  made  parties  to  the  partition,  A.'s 
title  was  held  unmarketable.  Herzberg  v.  Irwin,  92  Pa.  St.  48.  The  fact 
that  a  record  in  partition,  under  which  title  is  derived,  fails  to  show  that 
certain  persons  not  joined  as,  parties,  who  would  be  necessary  parties  if 
capable  of  taking,  were  incapable  for  any  reason  (alien  enemies,  for  example), 
and,  therefore,  properly  omitted,  renders  the  title  doubtful.  Toole  v.  Toole,  112 
N.  Y.  333:  22  Abb.  N.  C.  3f>2.  A  title  resting  on  a  sale  under  execution 
against  heirs  upon  a  judgment  founded  on  a  set.  fa.  in  which  the  heirs  were 
not  specially  named  is  unmarketable.  Newman  v.  Maclin,  5  Hayw.  (Tenn.) 
241;  Williams  v.  Seawell,  1  Yerg.  (Tenn.)  83;  Henderson  v.  Overton.  2  Yerg. 
<Tenn.)  394;  24  Am.  Dec.  492.  B.,  tenant  in  common  with  C.,  devised  his 


760  MARKETABLE    TITLE    TO    REAL    ESTATE. 

title  depended  on  a  like  proceeding,  and  the  record  therein 
showed  that  all  parties  apparently  in  interest  had  been  made 
parties  to  the  suit,  it  was  held  that  the  burden  was  on  the  pur- 
chaser to  show  that  some  necessary  party  was  omitted  whereby 

estate  to  his  wife  subject  to  legacies.  The  widow  conveyed  her  moiety  to  the 
other  co-tenant,  C.,  and  on  his  death  his  heirs  brought  suit  for  partition 
among  themselves.  B.'s  estate  was  insufficient  to  pay  the  legacies.  B.'s  lega- 
tees not  having  been  made  parties  to  the  suit,  the  title  thence  derived  was 
held  doubtful.  Jordan  v.  Poillon,  77  N.  Y.  518,  a  leading  case.  See,  also, 
Argall  v.  Raynor,  20  Hun  (N.  Y.),  267;  Scholle  v.  Scholle,  55  N.  Y.  Super. 
Ct.  474.  Where  a  third  person,  not  a  party  to  a  suit  for  partition,, 
had  a  right  to  enforce  a  power  of  sale  against  the  land  in  the 
hands  of  the  partitioner  and  those  claiming  under  them,  the  title  was  held 
unmarketable.  Ford  v.  Belmont,  7  Rob.  (N.  Y.)  97,  111.  A  purchaser  will 
not  be  required  to  take  a  title  under  a  decree  in  a  suit  for  the  construction 
of  a  will  to  which  all  persons  in  interest  were  not  parties.  Sohier  v.  Williams, 
1  Curt.  (C.  C.)  479.  Where  the  question  was  whether  certain  acts  of  a 
widow  amounted  to  an  election  to  accept  a  provision  made  for  her  in  her 
husband's  will,  and  the  question  was  decided  in  the  affirmative,  she  not  being 
a  party  to  the  proceeding  in  which  the  question  was  raised,  a  title  depending 
thereon  was  held  unmarketable:  Reynolds  v.  Strong,  82  Hun  (N.  Y.),  202; 
31  N.  Y.  Supp.  329. 

Titles  held  marketable. —  Whether  a  judgment  in  a  suit  by  one  proprietor 
declaring  an  assessment  void  for  certain  defects  in  the  statute  under  which 
it  was  laid  was  conclusive  in  favor  of  other  proprietors  not  parties  to  the 
proceeding:  Chase  v.  Chase,  95  N.  Y.  373.  Whether  an  assignee  for  the 
.benefit  of  creditors  should  have  been  made  a  party  to  a  suit  to  foreclose  a 
mortgage  executed  before  the  assignment :  Wagner  v.  Hodge,  34  Hun  ( N.  Y. ) , 
524.  Whether,  in  a  certain  case  in  which  remaindermen  had  not  been  made 
parties  to  a  suit  for  partition,  they  were  concluded  by  a  judgment  in 
a  subsequent  suit  to  which  they  were  parties,  by  which  it  was  determined 
that  they  had  no  interest  in  premises  alloted  to  a  party  to  such  partition 
suit  under  whom  the  vendor  claims:  Paget  v.  Melchior,  58  N.  Y.  Supp.  913; 
42  App.  Div.  76.  Whether  the  possible  heirs  of  a  married  woman  were  bound 
by  a  decree  in  a  suit  by  her  to  reform  a  deed  drawn  by  mistake  to  convey 
land  to  her  use  for  life  with  remainder  to  her  heirs,  instead  ot  conveying  to 
her  an  absolute  fee  simple:  Kendall  v.  Crawford,  25  Ky.  Law  R.  1224;  77 
S.  W.  Rep.  364.  Testator  devised  certain  property  to  his  wife  for  life,  with 
remainder  to  their  married  daughter  for  life,  and  remainder  over  to  her 
children.  The  widow  disclaimed  under  the  will,  and  claimed  the  property  as 
her  separate  estate,  and  brought  a  suit  against  the  married  daughter  and 
the  living  children  of  such  daughter,  to  quiet  her  title  to  the  property.  There 
was  a  decree  in  her  favor.  Held,  that  title  under  such  decree  was  not  ren- 
dered unmarketable  by  the  fact  that  other  children  were  born  to  the 
daughter  after  the  decree.  They  were  virtually  represented  in  the  suit  by 
their  mother.  Gray  v.  Smith,  76  Fed.  525.  Whether,  in  a  certain  case,  two> 
charities,  to  each  of  which  testator  devised  a  share  of  his  estate,  were  one- 


OF    DOUBTFUL   TITLES.  761 

the  title  was  rendered  unmarketable.91  The  bare  possibility  that 
one  of  the  defendants,  who  was  proceeded  against  as  a  non- 
resident, might  appear  at  some  future  period  and  make  objections 
to  the  decree,  is  no  ground  on  which  title  under  such  decree  can 
be  held  doubtful.92 

§  299-a.  Irregularities  in  foreclosure  sales.  A  great  number 
of  titles  depend  upon  sales  under  deeds  of  trust  and  "  power 
of  sale"  mortgages  executed  to  secure  the  payment  of  debts. 
These  sales  are  made  by  the  trustee  or  mortgagee,  without  the 
intervention  of  the  courts,  after  advertisement  and  the  ob- 
servance of  other  formalities  provided  for  in  the  instruments 
under  which  they  act.  If  there  should  be  any  serious  doubt  as  to 
the  validity  of  the  sale  for  any  cause,  such  as  want  of  due  adver- 
tisement of  the  sale,  misconduct  of  the  trustee,  collusion  between 
the  purchaser  and  the  mortgagee  or  trustee,  gross  inadequacy  of 
the  price,  and  the  like,  and  the  rights  of  the  parties  affected  by 
the  sale  have  not  become  barred  by  the  lapse  of  time,  title  depend- 
ent upon  such  sale  will  be  deemed  unmarketable,  and  not  such  as 
a  purchaser  may  be  required  to  take.93 

§  300.  Defective  conveyances  and  acknowledgments.  Imper- 
fect registration.  A  vast  number  of  objections  to  title  are  founded 
upon  errors  or  irregularities  in  the  drafting,  acknowledgment,  and 

and  the  same  corporation,  so  that  one  of  them  was  properly  not  made  a  partj 
defendant  to  a  proceeding  for  the  sale  of  the  property  devised:  Sisters  of 
Mercy  v.  Benzinger,  95  Md.  684;  53  Atl.  548.  The  fact  that  an  assignee  for 
the  benefit  of  creditors  of  property  which  had  been  previously  mortgaged  was 
not  made  a  party  to  a  suit  to  foreclose  the  mortgage,  was  held,  after  the  lapse 
of  more  than  twenty-five  year's,  no  objection  to  the  title  under  Laws  of  New 
York,  1875,  providing  that  deeds  for  the  benefit  of  creditors  shall  be  deemed 
discharged  aftery  twenty-five  years  from  their  date.  Kip  v.  Hirsh,  103  N.  Y. 
565;  9  N.  E.  Rep.  317.  Failure  to  make  an  incumbrancer  a  party  to  a  suit 
to  foreclose  a  prior  incumbrance,  though  error,  does  not  render  the  title  of 
the  purchaser  at  the  foreclosure  sale  unmarketable,  since  the  purchaser  ac- 
quires by  subrogation  all  the  rights  of  the  prior  incumbrancer.  De  Saussure 
v.  Bollman,  7  Rich.  (N.  S.)  (S.  C.)  329. 

"Day  v.  Kingsland,  57  N.  J.  Eq.  134;  41  Atl.  Rep.  99. 

"Wolverton  v.  Stevenson,  52  La.  Ann.  1147;  27  So.  Rep.  674. 

"Martin  v.  Hamlin,  176  Mass.  180;  57  N.  E.  Rep.  381.  In  Crutchfield  v. 
Hewett,  2  App.  D.  C.  373,  such  a  sale  was  set  aside  by  the  lower  court  after 
seventeen  years'  delay,  for  want  of  due  advertisement  and  for  other  irregulari- 
ties. The  decree  was  reversed  on  the  ground  that  the  complainants  had  slept 
too  long  upon  their  rights. 


762  MARKETABLE    TITLE    TO    REAL    ESTATE. 

registration  of  deeds  under  which  title  is  claimed.  These,  of 
course,  may  be  absolutely  fatal  to  the  title,  or,  at  least,  render  it 
doubtful;  but  many  of  them  are  merely  captious  or  frivolous, 
being  ferreted  out  by  counsel  to  aid  the  purchaser  in  his  escape 
from  a  losing  bargain.  They  are  principally  questions  of  law  sug- 
gested by  clerical  mistakes  and  inadvertent  omissions  on  the  part 
of  those  concerned  in  the  execution  and  authentication  of  convey- 
ances, such,  for  example,  as  the  sufficiency  of  an  informal  and  ir- 
regular certificate  of  acknowledgment ;  or  the  sufficiency  of  a  deed 
in  which  the  spelling  of  the  name  of  the  grantor  in  the  body  of  the 
deed,  differs  from  his  signature  to  the  deed.  Of  course,  however, 
graver  questions  frequently  arise ;  e.  g.,  whether  the  language  em- 
ployed by  the  grantor  in  the  granting  clause,  is  sufficient  to  create 
a  certain  interest,  and  the  like.  In  either  case,  if  the  question 
admit  of  a  reasonable  doubt,  the  title  depending  thereon  will  not 
bo  forced  upon  the  purchaser.  The  want  of  regular  registration 
of  deeds  under  which  the  vendor  deduces  title,  there  being  no 
other  proof  of  execution,  is  an  insuperable  objection  to  specific  per- 
formance by  the  purchaser.94 

MHyne  v.  Campbell,  6  T.  B.  Mon.  (Ky.)  286.  George  v.  Conhaim,  38  Minn. 
338;  37  N.  W.  Rep.  391.  The  mere  non-record  of  a  deed  executed  by  a  referee 
in  forclosure  proceedings  does  not  render  doubtful  a  title  held  thereunder,  the 
court  having  confirmed  the  sale  and  directed  the  deed  to  be  made.  Calder  v. 
Jenkins,  16  N.  Y.  Supp.  797. 

EBBORS  AND  IRREGULARITIES  IN  THE  DRAFTING,  EXECUTION  AND  ACKNOWLEDG- 
MENT OF  INSTRUMENTS  —  Titles  held  not  marketable.  Whether  a  certain  con- 
veyance had  been  executed  as  an  escrow  or  not:  Sloper  v.  Fish,  2  Ves.  &  Bea. 
145.  Whether  by  a  conveyance  of  lot  "  fifteen  "  in  a  certain  block,  lot  fifteen 
in  a  subdivision  of  original  lot  fifteen  was  intended:  Parker  v.  Porter,  11  111. 
App.  602.  Where  the  description  of  the  property  in  the  deed  to  the  vendor 
varied  materially  from  that  in  a  prior  deed  in  the  chain  of  title:  Fitzpatrick 
v.  Sweeny,  56  Hun  (N.  Y.),  159;  121  N.  Y.  707.  Where  there  is  a  mistake 
in  the  description  of  the  premises  in  a  deed  under  which  the  vendor  holds: 
Smith  v.  Turner,  50  Ind.  367.  Heller  v.  Cohen,  154  N.  Y.  299;  48  N.  E.  527. 
Where  a  tract  of  land  was  originally  surveyed  in  a  block  with  other  lands, 
and  from  fixed  monuments  and  other  circumstances,  it  appears  probable  that 
there  was  a  serious  interference  between  the  various  tracts:  Holt's  Appeal, 
OS  Pa.  St.  258.  Whether  a  certificate  of  acknowledgment  which  failed  to 
state  that  the  grantors  were  known  to  the  certifying  officer  to  be  such,  etc., 
was  sufficient :  Fryer  v.  Rockefeller,  63  N.  Y.  268 ;  Paolillo  v.  Faber,  67  N.  Y. 
Supp.  638;  56  App.  Div.  241;  Freedman  v.  Oppenheim,  81  N.  Y.  Supp.  110; 
SO  App.  Div.  487.  Where  certificate  of  acknowledgment  failed  to  show  that 
the  certifying  officer  was  personally  acquainted  with  the  grantor:  Mullina  v. 


OF    DOUBTFUL   TITLES.  763 

The  general  rule  is  that  in  so  far  as  the  title  depends  upon 
the  execution,  attestation,  acknowledgment,  and  effect  of  convey- 

Aiken,  2  Heisk,  (Tenn.)  535.  When  the  certificate  of  the  clerk  of  court  failed 
to  state  that  he  was  acquainted  with  the  officer's  handwriting  and  believed 
his  signature  genuine:  Freedman  v.  Oppenheimer,  81  N.  Y.  Supp.  110;  80  App. 
Div.  487.  Where  the  wife's  acknowledgment  of  a  deed  under  which  the  vendor 
claimed,  was  wanting:  McCann  v.  Edwards,  6  B.  Mon.  (Ky.)  208.  Where 
the  certificate  did  not  show  prior  examination  of  the  wife :  Hepburn  v.  Auld, 
5  Cranch  (U.  S.) ,  267,  275.  Whether  parol  evidence  of  the  certifying  officer 
could  be  received  to  show  that  the  wife's  acknowledgment  was  duly  taken: 
Tomlin  v.  McChord,  5  J.  J.  Marsh.  (Ky.)  135.  Whether  a  certain  informal 
certificate  of  acknowledgment  of  a  deed  by  a  married  woman  sufficiently 
showed  that  the  grantor  was  known  to  the  certifying  officer,  that  the  deed  had 
been  explained  to  the  grantor,  that  she  had  been  privily  examined  apart  from 
her  husband,  and  that  she  had  declared  that  she  had  willingly  signed,  sealed 
and  delivered  the  same:  Black  v.  Aman,  6  Mackey  (D.  C.),  131.  A  title 
dependent  on  an  acknowledgment  of  a  married  woman,  taken  before  a  party 
to  the  deed  acknowledged,  is  not  marketable.  Withers  v.  Baird,  7  Watts 
(Pa.),  227;  32  Am.  Dec.  754.  And  a  title  derived  through  a  conveyance 
defectively  acknowledged  by  a  married  woman,  is  unmarketable.  Beardslee  v. 
Underbill,  37  N.  J.  L.  309.  Where  a  deed  was  recorded  upon  a  certificate  of 
acknowledgment  before  a  commissioner  of  deeds  for  the  State  of  New  York, 
and  was  not  accompanied  by  a  certificate  from  the  Secretary  of  State  of  the 
State  of  New  York,  showing  authority  on  the  part  of  said  commissioner,  and 
there  was  no  extraneous  evidence  to  show  that  the  deed  had  been  in  fact 
acknowledged  by  the  grantor,  a  title  thence  derived  was  held  unmarketable. 
Williamson  v.  Banning,  86  Hun  (N.  Y.),  203;  (33  N.  Y.  Supp.).  In  Irving 
v.  Campbell,  121  N.  Y.  353;  24  N.  E.  Rep.  821;  8  L.  R.  A.  620,  the  fact  that 
a  certificate  of  acknowledgment  of  a  conveyance  did  not  state  the  place  of 
residence  of  the  subscribing  witness,  was  held  to  render  the  title  unmarket- 
able, though  it  appeared  that  the  person  and  place  of  residence  of  such  witness 
was  well  known.  A  title  founded  upon  a  decree  against  husband  and  wife  to 
enforce  specific  performance  of  a  contract  by  the  husband  to  sell  the  wife's 
lands,  is  unmarketable,  where  it  appears  that  there  are  no  equities  binding 
the  wife  in  a  suit,  or  that  she  had  not  released  her  rights  in  the  manner 
provided  by  law.  Hays  v.  Tribble.  3  T.  B.  Mon.  (Ky.)  106.  Where  an  abstract 
of  title  showed  record  title  in  "  H.  P.  Hepburn  "  and  no  title  out  of  him,  but 
title  out  of  "  H.  P.  Hopkins,"  and  the  vendor  claimed  that  the  deed  from  Hop- 
kins was  in  fact  from  Hepburn,  but  refused  to  submit  his  proofs  for  examina- 
tion of  the  purchaser,  it  was  held  that  the  latter  might  reject  the  title  and  re- 
cover his  deposit,  though  the  vendor  might  be  able  to  show  that  the  title  was 
good.  Benson  v.  Shotwell,  87  Cal.  40-;  25  Pac.  Rep.  249.  So,  also,  where  the  rec- 
ord title  was  in  "  K.  F.  Redmond  "  and  the  next  conveyance  was  from  "  K.  F. 
Redman,''  it  was  held  that  the  two  names  were  not  idem  sonans,  and  that  the 
title  was  unmarketable,  and  that  the  defect  was  not  cured  by  a  second  deed 
from  K.  F.  Redman  to  the  plaintiff's  vendor,  reciting  that  he  was  the  aame 
person  as  "  K.  F.  Redmond"  in  the  first-mentioned  deed.  Peckham  v. 
Stewart,  97  Cal.  147;  81  Pac.  Rep.  928.  So,  also,  where  a  conveyance  was 
by  error  made  to  "  James  M."  instead  of  "  Joseph  M.,''  though  the  error  was 


764  MARKETABLE    TITLE    TO    REAL   ESTATE. 

ances,  as  they  appear  upon  the  record,  they  must  be  free  from 
reasonable  doubt  upon  their  faces,  and  must  have  been  properly 

afterwards  recited  in  a  suit  in  which  the  premises  were  partitioned  between 
the  heirs  of  Joseph  M.  and  one  who  had  been  his  co-tenant,  such  recital  and 
finding  not  being  conclusive  upon  any  one  who  should  claim  as  James  M. 
Mead  v.  Altgeld,  136  111.  298;  26  N.  E.  Rep.  388. 

Titles  held  marketable.  Whether  a  conveyance  under  which  the  vendor 
claimed  was  a  sealed  instrument:  Todd  v.  Union  Dime  Sav.  Bank,  118 
N.  Y.  337;  23  N.  E.  Rep.  299,  reversing  20  Abb.  N.  C.  270,  and  44  Hun 
(N.  Y.),  623.  Whether  the  husband  must  join  in  a  conveyance  by  an  execu- 
trix: Tyree  v.  Williams,  3  Bibb  (Ky.),  366;  6  Am.  Dec.  663.  Whether 
"  Electa  Wilder,"  under  whom  the  vendor  claimed,  was  one  and  the  same 
person  with  "  Electa  Wilds,"  in  whom  appeared  the  record  title  up  to  the 
time  of  the  conveyance  by  "  Electa  Wilder  " :  Hellreigel  v.  Manning,  97  N.  Y. 
56.  Whether  signing  a  deed  by  a  wrong  name  invalidates  it,  when  the  true 
name  is  recited  in  the  body  of  the  deed,  and  the  grantor  also  acknowledges 
the  deed  by  his  true  name:  Middleton  v.  Findla,  25  Cal.  76.  In  the  de- 
scriptive clause  of  a  deed,  a  course  was  given  as  "  southeasterly,"  but  the 
deed  itself  furnished  evidence  that  "  southwesterly "  was  intended,  and  it 
was  held  that  the  misdescription  of  the  course  did  not  render  the  title  un- 
marketable. Brookman  v.  Kurzman,  94  N.  Y.  272;  Clark  v.  Hutzler,  96 
Va.  73;  30  S.  E.  Rep.  469;  Maryland  Const.  Co.  v.  Kuper,  90  Md.  529;  45 
Atl.  197.  A  misdescription  of  the  boundary  lines  of  the  premises  does  not 
make  the  title  doubtful,  if  the  land  may  be  clearly  identified  from  the  monu- 
ments and  objects  mentioned  in  the  deed.  Galvin  v.  Collins,  128  Mass.  525. 
See,  also,  Meyer  v.  Boyd,  51  Hun  (N.  Y.),  291,  295;  4  N.  Y.  Supp.  328. 
Where  a  deed  under  which  the  vendor  claims  describes  the  land  as  being  on 
the  south  side  of  a  river,  but  refers  to  a  patent  which  places  it  on  the  west 
side,  and  the  identity  of  the  land  appears,  the  misdescription  does  not  render 
the  title  unmarketable.  Newsom  v.  Davis,  20  Tex.  419.  In  the  deed  of  a 
married  man,  his  name  alone  appeared  as  grantor,  but  the  wife's  name  was 
included  in  the  testimonium  clause,  and  she  signed  and  acknowledged  the 
deed.  Held,  that  the  omission  of  the  wife's  name  in  the  body  of  the  deed 
did  not  render  the  title  unmarketable.  Atkinson  v.  Taylor,  34  Mo.  App.  442. 
The  validity  of  a  recorded  deed  is  not  affected  by  the  failure  of  the  notary 
to  recognize  his  official  seal  in  the  testimonium  clause  of  his  certificate  of 
acknowledgment.  Mitchener  v.  Holmes,  (Mo.)  22  S.  W.  Rep.  1070.  Whether 
a  certificate  of  acknowledgment  before  a  mayor  of  a  town,  without  a  seal 
or  other  evidence  of  authority,  is  sufficient,  forty  years'  possession  having 
been  had  thereunder:  Brown  v.  Witter,  10  Ohio,  143.  Whether  an  acknowl- 
edgment by  a  married  woman  before  a  different  officer  and  at  a  different 
time  from  her  husband  was  valid,  under  a  statute  which  merely  required 
that,  "  in  addition "  to  the  husband's  acknowledgment,  the  wife  should 
declare,  etc.:  Ludlow  v.  O'Neil,  20  Ohio  St.  182.  Whether  the  language, 
"  Personally  came  A.  B.,  the  executor  of  the  annexed  deed,  and  acknowledged 
it,"  was  equivalent  to  "acknowledged  the  execution  of-  the  annexed  deed:" 
Davar  v.  Caldwell,  27  Ind.  478.  A  purchaser  cannot  reject  the  title  on  the 
ground  that  the  probate  of  a  deed  unfler  which  the  vendor  claims  does  not 


OF    DOUBTFUL   TITLES.  765 

and  legally  recorded,  or  be  such  as  are  legally  entitled  to  be 
recorded.96 

It  sometimes  happens  that  the  date  of  a  deed  in  the  vendor's 
chain  of  title  is  subsequent  to  the  date  of  the  acknowledgment  of 
the  deed.  Such  a  discrepancy  will  not  of  itself  justify  the  pur- 
chaser in  refusing  to  take  a  conveyance  of  the  premises  on  the 
ground  that  the  title  is  not  clear.  The  certificate  of  acknowledg- 
ment is  presumed  to  be  correct,  and  will  not  be  controlled  by  the 
date  inserted  in  the  deed.  Even  if  the  date  of  the  deed  were 
inserted  subsequently  the  discrepancy  would  be  immaterial,  because 
the  real  date  of  a  deed  is  the  time  of  its  delivery,  which  may  be 
subsequent  to  the  acknowledgment,  and  even  after  registration.9* 

contain  the  official  title  of  the  person  taking  the  proof,  when  it  can  be  shown 
that  he  was  an  officer  authorized  to  take  such  proof  at  the  time.  Bronk  v. 
McMahon,  37  S.  Car.  309.  The  fact  that  the  clerk  made  a  short  memoran- 
dum of  an  acknowledgment  by  a  married  woman,  and  afterwards  wrote  out 
the  certificate  in  full  and  recorded  it,  the  death  of  the  married  woman  hav- 
ing supervened,  does  not  affect  a  title  derived  under  such  certificate.  Prewitt 
v.  Graves,  5  J.  J.  Marsh,  (Ky. )  114.  Whether  a  certain  deed  of  an  executor 
sufficiently  showed  authority  on  his  part  to  convey,  there  being  no  recital 
of  a  power  to  convey  therein:  Doody  v.  Hollwedel,  48  N.  Y.  Supp.  93;  22 
App.  Div.  456.  Whether  a  certain  deed  executed  by  the  owner  of  a  lot 
divided  by  a  public  highway  operated  to  convey  the  grantor's  interest  in 
one  of  the  parts  to  the  center  of  the  highway,  without  words  to  that  effect: 
Pell  v.  Pell,  73  N.  Y.  Supp.  81;  65  App.  Div.  388  (aff'd).  In  Garden  City 
Land  Co.  v.  Miller,  157  111.  225;  41  N.  E.  Rep.  753,  it  was  held  that  the 
failure  of  a  deed  in  the  vendor's  chain  of  title  to  mention  a  meridian,  or  the 
county  or  State  in  which  the  land  conveyed  was  situated,  did  not  render 
the  title  unmarketable,  there  being  evidence  to  show  beyond  dispute  what 
land  was  intended  to  be  conveyed.  Where  a  decree  of  court  required  the 
vendor  to  execute  a  deed  to  the  purchaser,  which  was  done,  and  the  deed 
was  delivered  to  the  court  to  be  disposed  of  by  its  future  order,  the  fact 
that  the  grantor  died  before  the  delivery  of  the  deed  to  the  grantee  did  not 
affect  the  validity  of  the  deed,  nor  justify  the  purchaser  in  refusing  to 
accept  it.  Faile  v.  Crawford,  54  N.  Y.  Supp.  264;  34  App.  Div.  278.  The 
vendor  was  permitted  to  show  that  O.  L.  Hildebrandt,  named  as  a  grantor 
in  the  abstract  of  title,  was  the  same  person  as  Levi  Hildebrandt,  previously 
named  in  the  abstract  as  a  grantee.  Hollifield  v.  Landrum  (Tex.  Civ.  App.), 
71  S.  W.  979. 

"Han-ass  v.  Edwards,  94  Wis.  459,  69  N.  W.  Rep.  69. 

••Dresel  v.  Jordan,  104  Mass.  407. 

REGISTRATION  OF  DEEDS,  ETC. — Titles  held  doubtful.  Whether  an  attach- 
ment levied  upon  land  took  priority  over  an  unrecorded  conveyance  of  the 
land:  Mullins  v.  Aiken,  2  Heisk.  (Tenn.)  535.  Want  of  regular  registration 
of  deeds  by  which  the  vendor  deduces  title,  there  being  no  other  proof  of 


766  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

§  301.  Construction  of  deeds,  wills,  etc.  Perhaps  the  most  dif- 
ficult questions  on  which  title  to  real  estate  depends,  as  between 
vendor  and  purchaser,  are  those  which  involve  the  true  construc- 
tion of  some  instrument,  such  as  a  deed  or  will,  which  forms  a  part 
of  the  vendor's  muniments  of  title.  In  the  law  of  contingent 
remainders,  executory  devises,  restraints  upon  alienation,  the  crea- 
tion of  perpetuities,  and  the  like,  there  are  many  niceties  and 
subtleties,  concerning  which,  as  related  to  the  peculiar  circum- 
stances of  each  case,  the  most  learned  in  the  law  may  well  doubt. 
So,  too,  the  true  intent  of  a  testator,  whose  will  has  been  inartifi- 
cially  and  unskillfully  drawn,  is  often  a  question  upon  which  dif- 
ferent judges  entertain  different  opinions.  And  oftentimes,  with 
the  aid  of  parol  evidence  to  explain  patent  ambiguities  in  a  will, 
it  is  impossible  to  determine,  beyond  a  reasonable  doubt,  to  what 
persons  or  things  the  testator  refers.97 

their  existence,  is  a  fatal  objection  to  the  title.  Bartlett  v.  Blanton.  4  J.  J. 
Marsh.  (Ky.)  427.  Where  the  law  requires  a  will  of  lands,  admitted  to 
probate  without  the  State,  to  be  recorded  within  the  State,  the  title  will 
not  be  perfected  and  marketable  until  such  record  is  made.  Wilson  v. 
Tappan,  6  Ohio,  172.  A  purchaser  will  not  be  compelled  to  take  a  title  under 
a  deed  which  is  not  recorded  nor  shown  to  have  been  executed  as  the  law 
requires.  Hyne  v.  Campbell,  6  T.  B.  Hon.  (Ky.)  286.  Harrass  v.  Edwards, 
94  Wis.  459;  69  N.  W.  Rep.  69. 

Titles  held  marketable.  Whether  an  assignment  of  a  mortgage  was  neces- 
sary to  be  recorded:  Fryer  v.  Rockefeller,  63  N.  Y.  268.  Whether  a  certain 
conveyance  recorded  in  the  county  clerk's  office  of  New  York  county,  but  not 
recorded  in  the  office  of  the  register  of  deeds,  was  notice  to  a  subsequent 
purchaser :  Wagner  v.  Hodge,  34  Hun  ( N".  Y. ) ,  524.  The  fact  that  a  deed 
under  which  the  vendor  claims  is  unregistered  does  not  make  the  title  doubt- 
ful when  the  grantor  in  such  deed  is  dead,  without  creditors,  and  no  subse- 
quent sale  is  shown,  and  the  grantee  is  in  possession.  Cotton  v.  Ward, 
3  T.  B.  Mon.  (Ky.)  304.  The  omission  of  a  county  clerk's  certificate  to 
state  the  name  and  official  character  of  the  officer  taking  the  acknowledg- 
ment, may  be  supplied  from  the  certificate  of  acknowledgment.  And  the 
absence  of  a  date  to  such  certificate  is  immaterial  where  not  required  by 
statute.  So,  also,  the  want  of  a  seal  to  a  county  clerk's  certificate  of  the 
official  character  of  the  certifying  officer.  Thorn  v.  Mayer,  33  N.  Y.  Supp. 
664".  The  failure  of  a  recorder  of  deeds  to  note  the  time  when  a  deed  was 
recorded  will  not  affect  the  title,  where  the  rights  of  no  third  person  are 
concerned.  Thorn  v.  Mayer,  33  N".  Y.  Supp.  664. 

"  CONSTRUCTION  OF  INSTRUMENTS  —  Titles  held  doubtful.  Whether  in  a 
certain  case  there  was  an  unlawful  suspension  of  the  power  of  alienation : 
Beams  v.  Mela,  10  N.  Y.  Supp.  429;  58  Hun  (N.  Y.),  588.  Whether  in  a 
certain  case  the  purchaser  was  required  to  see  to  the  application  of  th« 


OF    DOUBTFUL   TITLES.  767 

§  302.  Competency  of  parties  to  deeds.  The  competency, 
power  or  authority  of  those  who  undertake  to  execute  conveyances 
of  lands,  constitutes  a  most  fruitful  source  of  objections  to  title. 

purchase  money:  Garnett  v.  Ma  con,  6  Call  (Va.),  308.  St.  Mary's  Church 
v.  Stockton,  8  N.  J.  Eq.  520.  Whether  a  certain  devise  was  governed  by  the 
rule  in  Shelley's  case:  Doebler's  Appeal,  14  P.  F.  Smith  (Pa.),  9.  Mon- 
aghan  v.  Small,  6  Rich  (N.  S.)  (S.  C.)  177.  Whether  a  certain  deed  abso- 
lute in  form  was  in  fact  a  mortgage:  Cunningham  v.  Sharp,  11  Humph. 
(Tenn. )  116.  Whether  the  designation  of  certain  premises  on  a  map  of 
lots  as  a  "  wharf,"  and  certain  acts  in  connection  therewith,  amounted  to  a 
dedication  of  such  premises  to  the  uses  of  the  prospective  buyers  of  adjoin- 
ing lots:  Hymers  v.  Branch,  6  Mo.  App.  511.  Whether  certain  language 
in  a  deed  was  sufficient  to  show  that  the  grantor  intended  thereby  to  convey 
his  interest  in  a  highway  subject  to  the  public  use:  Lee  v.  Lee,  27  Hun 
(N.  Y.),  1.  See,  also,  Mott  v.  Mott,  68  N.  Y.  246;  In  re  Ladue,  54  N.  Y. 
Super.  Ct.  528.  \Vhether  a  quit  claim  or  release  by  a  married  woman  to  a 
stranger  will  operate  to  divest  her  inchoate  right  of  dower:  Merchants' 
Bank  v.  Thomson,  55  N.  Y.  7.  Whether  an  inchoate  right  of  dower  is  merged 
in  a  conveyance  by  the  husband  to  the  wife:  People  v.  Life  Ins.  Co.,  66  How. 
Pr.  (N.  Y.)  115.  Whether  a  husband  took  a  life  estate  or  a  fee  under  his 
wife's  will:  Butts  v.  Andrews,  136  Mass.  221.  Whether  a  limitation  over 
after  the  determination  of  a  life  estate  was,  in  a  certain  case,  void  for 
remoteness:  Lowry  v.  Muldrow,  8  Rich.  Eq.  (S.  C.)  241.  Whether  a  cor- 
poration under  a  conveyance  to  its  president,  "  his  successors  and  assigns," 
but  without  words  of  inheritance,  took  an  estate  in  fee:  Cornell  v.  Andrews, 
37  N.  J.  Eq.  7.  Whether  a  devisee  took  the  estate  with  absolute  power  of 
alienation:  Cunningham  v.  Blake,  121  Mass.  333.  Starnes  v.  Allison,  2 
Head  (Tenn.),  221.  Whether  certain  language  in  a  will  created  an  abso- 
lute or  a  conditional  fee:  Goerlitz  v.  Malawista,  56  Hun  (N.  Y. ),  120; 
8  N.  Y.  Supp.  832.  Certain  doubts  arising  upon  the  true  construction  of  a 
will,  held  sufficient  to  make  the  title  doubtful :  Sims  v.  McElroy,  39  X.  Y. 
St.  Rep.  324;  14  N.  Y.  Supp.  241.  Whether  a  certain  assignment  of  a  mort- 
gage to  the  mortgagor  as  "  trustee  "  amounted  to  an  absolute  release  of  the 
mortgage:  Sturtevant  v.  Jaques,  14  Allen  (Mass.),  523.  Whether  certain 
posthumous  children  of  a  testator  were  entitled  to  take  under  his  will : 
Kilpatrick  v.  Barren,  125  N.  Y.  751;  26  N.  E.  Rep.  925.  Whether  a  certain 
remainder  created  by  will  was  vested  or  contingent:  Nelson  v.  Russell,  61 
Hun  (N.  Y.),  528;  16  N.  Y.  Supp.  395.  Whether  a  limitation  of  a  fee  upon 
a  fee  by  way  of  executory  devise  was  valid.  The  devise  was  held  valid,  and 
the  title  of  one  claiming  under  the  first  devise  was  held  to  be  not  such  as 
a  purchaser  could  be  compelled  to  take.'  Smith  v.  Kimball,  (111.)  38  N.  E. 
Rep.  1029.  Whether  a  certain  trust  authorized  a  sale  of  the  trust  subject  after 
the  beneficiaries  reached  the  age  of  twenty-one:  Paget  v.  Melchior,  58  X.  Y. 
Supp.  913;  42  App.  Div.  76.  Whether,  upon  a  true  construction  of  the 
testator's  will,  his  executors  were  authorized  to  sell  his  realty  before  his 
son  arrived  at  the  age  of  21:  Clouse's  App.  192  Pa.  108;  43  Atl.  413. 
Whether  a  devise  to  A.  "  for  his  use,  benefit,  and  behoof,  in  trust  for  his 


768  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

The  question  may  be  one  of  fact,  as  whether  the  grantor  was  a 
minor,  a  lunatic  or  a  married  woman,  or  it  may  be  a  question  of 
law,  as  whether  the  courts  of  one  State  have  power  and  authority 
to  appoint  a  commissioner  to  sell  and  convey  lands  in  a  sister 
State,  or  whether  one  conveying  in  pursuance  of  a  power  has  ex- 
ceeded his  authority.  A  title  dependent  upon  a  conveyance  exe- 
cuted by  one  admitted  to  be  an  infant  or  a  person  non  compos 
mentis  is  absolutely  bad,  for  such  a  deed  a  void.  But  if  the  fact 
of  infancy  or  the  want  of  contractual  capacity  be  in  dispute,  and 
there  be  a  reasonable  doubt  as  to  the  existence  of  either,  then  the 
title  is  technically  doubtful  or  unmarketable,  and  the  purchaser 
will  not  be  required  to  complete  the  contract.  In  a  case  in  Ken- 
tucky, the  court  held  that  a  title  should  not  be  declared  doubtful 

children "  vested  an  estate  in  fee  in  A.  on  the  theory  that  the  language 
used  was  insufficient  to  create  a  trust  estate:  Marks  v.  Halligan,  70  N.  Y. 
Supp.  444;  61  App.  Div.  179.  Whether  a  devise  to  testator's  wife  for  life, 
the  property  "or  what  remains  thereof"  to  go  to  a' son  in  remainder,  gave 
the  widow  an  absolute  power  to  sell  and  dispose  of  the  property:  Richards 
v.  Knight,  64  N.  J.  Eq.  196;  53  Atl.  452. 

Titles  held  marketable.  Whether  in  a  certain  case  there  was  an  unlawful 
suspension  of  the  power  of  alienation:  Kelso  v.  Lorillard,  85  N.  Y.  177; 
Rice  v.  Barrett,  102  N.  Y.  161;  6  N.  E.  Rep.  898.  Cushing  v.  Spalding,  164 
Mass.  287 ;  41  N.  E.  Rep.  297.  Whether  a  conveyance  by  one  of  two  devisees 
in  remainder  to  the  other  with  general  warranty  passed  the  interest  of  the 
grantor  in  remainder  by  estoppel  to  the  other  remainderman :  Vreeland  Y. 
Blauvelt,  23  N.  J.  Eq.  483.  Whether  a  certain  limitation  over  upon  the 
death  of  the  first  taker  without  issue  was  void  for  remoteness:  Miller  T. 
Macomb,  26  Wend.  (N.  Y.)  229.  A  testator  devised  his  estate  to  his  wife 
for  life,  but  made  no  disposition  of  the  remainder.  Testator  died  without 
children  or  descendants,  and  the  property  having  passed  to  the  wife  as  heir 
at  law,  a  purchaser  from  her  was  compelled  to  take  the  title.  Lemon  v. 
Rogge,  (Miss.)  11  So.  Rep.  470.  Whether  certain  language  in  a  deed  or  will 
created  a  life  estate  or  a  fee  in  the  grantee  or  devisee:  Cassel  v.  Cook, 
8  S.  &  R.  OPa.)  268;  11  Am.  Dec.  610.  Whether  a  legacy  in  a  certain  case 
was  an  equitable  charge  on  lands  embraced  in  a  residuary  devise  of  th« 
estate:  Wiltsie  v.  Shaw,  29  Hun  (N.  Y.),  195.  Whether  a  recital  in  a 
conveyance  to  school  trustees  "  for  the  uses  and  purposes  of  the  school  dis- 
trict upon  which  to  erect  a  schoolhouse  "  created  a  condition  on  which  the 
property  was  to  be  held :  Board  of  Education  v.  Reilly,  75  N.  Y.  Supp.  876 ; 
71  App.  Div.  468.  Whether,  in  a  certain  case,  a  trustee  should  have  been 
appointed  to  hold  the  legal  title  of  property  devised  in  trust,  and  make 
conveyances  of  the  same:  Cushing  v.  Spalding,  164  Mass.  287;  41  N.  E.  Rep. 
297.  Whether  a  sale  of  land  charged  with  legacies  operated  to  discharge  the 
legacies :  Waddell  v.  Waddell,  68  S.  C.  335 ;  47  S.  E.  Rep.  375. 


OF    DOUBTFUL   TITLES.  769 

because  of  the  alleged  insanity  of  a  remote  grantor,  if  the  fact  of 
insanity  was  left  in  doubt  at  the  final  hearing,  nor,  if  insanity 
be  fully  established,  unless  it  appear  that  the  deed  of  such 
grantor  had  been  in  fact  set  aside,  or  probably  would  be  in  pro- 
ceedings already  instituted  for  that  purpose.98  It  is  not  easy  to 
reconcile  this  decision  with  the  rule  that  a  purchaser  cannot  be 
compelled  to  take  a  title  which  will  probably  expose  him  to  litiga- 
tion. The  same  observation  will  apply  to  a  decision  that  the  in- 
capacity of  a  corporation  to  take  and  hold  real  estate,  does  not  affect 
the  validity  of  a  title  derived  through  the  corporation,69  unless 

••Hunt  v.  Weir,  4  Dana   (Ky.),  347. 

"Mo.  Valley  Land  Co.  v.  Buslmell,  11  Neb.  192;  8  N.  W.  Rep.  389. 

COMPETENCY,  POWER  OR  AUTHORITY  OF  PARTIES  —  Titles  held  doubtful.  In 
the  following  cases  questions  of  law  or  of  fact  as  to  the  authority  or  com- 
petency of  parties  to  convey  were  held  to  render  the  title  unmarketable: 
Whether  a  conveyance  \vas  executed  by  a  person  non  compos  mentis:  Freetly 
v.  Barnhart,  51  Pa.  St.  279;  Stobert  v.  Smith,  184  Pa.  St.  34;  38  Atl.  Rep. 
1019.  Brokaw  v.  Duffy,  105  N.  Y.  391;  59  N.  E.  Rep.  196.  Whether  a 
power  of  sale  conferred  upon  an  executor  can  be  exercised  by  his  executor: 
Chambers  v.  Tulane,  9  N.  J.  Eq.  146.  Whether  a  private  act  of  the  legis- 
lature empowering  a  life  tenant  to  sell  the  remainder  and  convey  a  title  in 
fee,  was  binding  upon  the  remainderman:  Bumberger  v.  Clippinger,  5  W.  4 
S.  (Pa.)  311.  Whether  a  personal  representative  had  power  to  assign  a 
bid  made  by  his  intestate  at  a  public  sale:  Palmer  v.  Morrison,  104  N.  Y. 
132;  10  N.  E.  Rep.  144.  Whether  a  conveyance  of  lands  lying  in  one  juris- 
diction, by  atl  officer  acting  under  the  orders  or  decree  of  a  court  of  another 
jurisdiction,  is  valid:  Contee  v.  Lyons,  19  D.  C.  207.  Watts  v.  Waddle, 

1  McLean    (U.  S.),  200.     See  Corbett  v.  Nutt,  10  Wall.    (U.  S.)    464,  and 
Watkins  v.  Holman,  16  Pet.   (U.  S.  57.     Whether  a  deed  executed  in  pursu- 
ance of  a  parol  power  of  attorney  was  sufficient  to  pass  title:    Jackson  v. 
Murray,  5  T.  B.  Mon.    (Ky.)    184;   17  Am.  Dec.  53.     Whether  the  deed  of  a 
married  woman  executed  by  power  of  attorney  as  to  which  she  was  privily 
examined,  was  sufficient  to  pass  her  inchoate  right  of  dower:    Lewis  v.  Coxe, 
5  Harr.   (Del.)   401.     Whether  power  of  sale  to  executors,  extended  to  lands 
of  the  testator  which  he  had  devised,  but  as  to  which  the  devise  failed  to 
take  effect:    Chambers  v.  Tulane,  9  N.  J.  Eq.  146.     Whether  a  power  of  sale 
to  executors  had  terminated:    Bruner  v.  Meigs,  64  N.  Y.  500.     Whether  an 
executor  in  a  certain  case  had  power  under  the  will  to  sell  realty:    Alkus  v. 
Goettmann,  39  N.  Y.  St.  Rep.  324;  S.  C.,  14  N.  Y.  Supp.  241;  Droge  v.  Cree, 
39  N.  Y.  St.  Rep.  264:   S.  C.,   14  N.  Y.  Supp.  300;   Warren  v.  Banning,  21 
N.   Y.   Supp.   883.     Whether   one    of   several   joint  executors   had    renounced 
his  trust,  the  validity  of  a  sale  by  the  other  executors  under  a  power,  being 
dependent   upon    such    renunciation:     Fleming    v.    Burnham,    100    N.    Y.    1; 

2  N.  E.  Rep.  905.     Whether  executors  acting  under  a  power  had  sold  more 
land  than  was  necessary  for  the  purposes   of  the  testator:    Townshend  v. 

49 


770  MARKETABLE    TITLE    TO    REAL    ESTATE. 

it  was  thereby  intended  to  decide  that  the  State  could  not  insist 
upon  a  forfeiture  of  the  estate  in  the  hands  of  the  grantee  of  the 
corporation. 

Goodfellow,  40  Minn.  312;  41  N.  W.  Rep.  1056.  Whether  a  will  executed 
by  one  of  two  joint  executors  was  sufficient  —  the  will  requiring  the  execu- 
tors to  act  jointly  in  the  settlement  of  the  estate:  House  v.  Kendall,  55 
Tex.  40.  Whether  a  sale  by  an  assignee  in  bankruptcy  without  an  order 
of  court  was  valid:  Palmer  v.  Morrison,  104  N.  Y.  132;  10  N.  E.  Rep.  144. 
Whether  certain  trustees  of  a  religious  society  were  competent  to  convey  a 
good  title,  under  a  private  act  authorizing  them  to  sell  and  convey,  the  prop- 
erty being  liable  to  revert  to  the  grantor  if  diverted  from  the  purposes  of  the 
grant:  Second  Universalist  Soc.  v.  Dugan,  65  Md.  460;  5  Atl.  Rep.  415. 
Whether  a  church  organization  was  competent  to  convey  a  fee  where  the  title 
was  vested  in  the  church's  "  trustees  and  their  successors  in  office  forever," 
and  there  was  no  conveyance  from  the  trustees  to  the  church :  M.  E.  Church 
v.  Roberson,  (N.  J.  Eq.)  58  Atl.  Rep.  1056.  Whether,  upon  a  true  construc- 
tion of  testator's  will,  his  executors  were  authorized  to  sell  and  convey  his 
realty  before  his  son  reached  the  age  of  twenty-one.  Clouse's  App.,  192  Pa. 
St.  108;  43  Atl.  Rep.  413.  Whether  a  married  woman  was  competent,  under  the 
laws  of  Missouri,  to  execute  a  conveyance  of  her  separate  estate  without  her 
husband  joining  therein:  Kennedy  v.  Koopman,  166  Mo.  87;  65  S.  W.  Rep. 
1020.  Whether,  in  a  case  in  which  testatrix  created  a  trust  in  favor  of  a  son, 
with  power  in  him  to  dispose  of  the  property  at  his  death  by  will,  but  did  not 
name  a  trustee,  the  son  was  competent  to  convey  the  legal  title.  McDougall 
y.  Dixon,  46  N.  Y.  Supp.  280;  19  App.  Div.  420.  A  power  of  attorney  de- 
fectively acknowledged  will  not  be  held  good  as  between  the  parties,  if  there 
be  no  other  evidence  of  the  execution  of  the  power  than  the  defective  acknowl- 
edgment; and  a  title  dependent  on  such  power  is  not  marketable.  Freedman 
v.  Oppenheim,  81  N.  Y.  Supp.  110;  80  App.  Div.  487.  In  a  case  in  which  the 
title  depended  on  the  powers  of  a  religious  corporation  to  convey  land,  and 
the  purchase  money  was  to  be  reinvested  in  other  lands  in  trust  for  the  cor- 
poration, the  purchaser  was  relieved.  St.  Mary's  Church  v.  Stockton,  8  N.  J. 
Eq.  520.  A  sheriff's  deed  is  insufficient  to  support  a  title  thereunder,  unless 
a  record  of  the  judgment  and  execution  under  which  the  sheriff  acted,  can  be 
produced.  Hampton  v.  Specknagle,  9  S.  &  R.  (Pa.)  212;  11  Am.  Dec.  704; 
Weyand  v.  Tipton,  5  S.  &  R.  (Pa.)  332;  Wilson  v.  McVeagh,  2  Yeates  (Pa.), 
86.  Distinguish  Burke  v.  Ryan,  1  Dall.  (U.  S.)  94,  where  possession  had 
gone  with  the  deed  for  more  than  thirty  years.  In  Smith  v.  Moreman,  1  T. 
B.  Mon.  (Ky. )  155,  the  vendor,  complainant  in  a  suit  for  specific  perform- 
ance, alleged  that  he  held  title  under  an  execution  sale,  but  failed  to  produce 
a  judgment  on  which  the  execution  issued,  and  his  bill  was  dismissed.  In 
Abbott  v.  James,  111  N.  Y.  673;  19  N.  E.  Rep.  434,  there  was  a  devise  of  an 
entire  estate  in  remainder  to  charitable  societies,  with  power  to  the  executor 
to  sell  the  real  estate  and  divide  the  proceeds  among  the  societies.  Under  the 
laws  of  New  York  the  devise  was  invalid,  except  as  to  one-half  of  the  tes- 
tator's estate.  After  the  precedent  estate  determined,  the  executor  sold  the 
real  estate  under  the  power,  but  the  title  was  held  unmarketable :  ( 1 )  Upon 


OF   DOUBTFUL   TITLES.  771 

§  303.  Title  as  dependent  upon  testacy  or  intestacy.  Debts  of 
decedent.  The  bare  possibility  that  a  will  may  be  discovered  after 
the  death  of  a  decedent,  does  not  render  title  by  descent  from  him 

a  question  of  fact,  namely,  the  ability  of  the  heirs  to  show  that  there  was  per- 
sonal property  enough  to  satisfy  the  devise  to  the  societies;  and  (2)  upon  a 
question  of  law,  namely,  whether  the  power  of  sale  failed  as  to  so  much  of  the 
real  estate  as  could  not  pass  to  the  charitable  societies.  A  purchaser  cannot 
be  compelled  to  take  a  title  dependent  on  a  conveyance  of  a  homestead  estate 
to  which  the  grantor's  wife  was  not  a  party.  Castleberg  v.  Maynard,  95  X. 
C.  281. 

Titles  held  marketable.  Whether  an  act  authorizing  administrators  c.  t.  a., 
to  execute  powers  of  sale,  validated  a  sale  under  a  will  which  was  probated 
before  the  passage  of  the  act:  Blakemore  v.  Kimmons,  8  Baxt.  (Tenn.)  470. 
Whether  a  certain  will  charged  the  testator's  realty  with  the  payment  "of  his 
debts,  and  whether  a  power  of  sale  was  conferred  on  the  executor:  Coogan  v. 
Ockershausen,  55  N.  Y.  Super.  Ct.  286.  Whether  a  power  of  sale  in  a  convey- 
ance to  trustees  for  the  benefit  of  a  married  woman  was  repugnant  to  the 
trust:  Belmont  v.  O'Brien,  2  Kern.  (N.  Y. )  394.  Whether  a  conveyance  by 
an  infant  trustee  under  decree  of  court  is  valid:  Thompson  v.  Dulles,  5  Rich. 
Eq.  (S.  C.)  370.  Whether  a  power  of  sale  had  been  properly  executed: 
Saunders  v.  Guille,  (Tenn.  Ch.)  37  S.  W.  Rep.  999.  Whether  the  deed  of  a 
corporation  must  show  authority  of  officers  to  convey.  Womack  v.  Coleman, 
89  Minn.  17;  93  N.  W.  Rep.  663.  Whether  a  certain  devise  to  a  religious 
corporation  in  1882,  in  New  Y»ork  was  within  the  statutory  limit,  no  question 
as  to  the  validity  of  the  devise  having  been  raised  by  the  heirs  for  more  than 
fifteen  years :  Moskowitz  v.  Hornberger,  46  N.  Y.  Supp.  462 ;  20  Misc.  Rep.  558. 
Whether  a  conveyance  by  trustees  of  the  "  Society  of  Shakers "  verbally 
approved,  was  valid  without  formal  action  by  the  ministry  and  elders. 
Feiner  v.  Reiss,  90  N.  Y.  Supp.  568 ;  98  App.  Div.  40.  Whether,  in  a  case  in 
which  the  grantor,  who  had  declared  a  trust  reserving  to  himself  the  right  to 
sell  and  convey  the  premises  could  convey  an  absolute  estate,  the  beneficiary 
not  joining  in  the  deed:  Griffith  v.  Maxfield,  66  Ark.  513;  51  S.  W.  Rep.  832. 
Whether  a  power  of  sale  in  the  executors  continued  after  all  debts  and  lega- 
cies were  paid:  Hatt  v.  Rich,  59  N.  J.  Eq.  492;  45  Atl.  969.  Whether  a 
power  of  sale  to  executors  embraced  not  only  the  territorial  extent  of  the 
testator's  lands  but  also  all  his  interest  in  such  lands:  Hatt  v.  Rich,  59  N. 
J.  Eq.  492;  45  Atl.  Rep.  969.  Whether,  in  a  case  in  which  land  had  ben» 
sold  by  a  referee  under  a  decree  of  court  to  carry  out  the  provisions  of  the 
will,  the  referee  was  competent  to  convey  the  title,  and  a  deed  from  the 
executor  was  unnecessary:  Straus  v.  Benheim,  59  N.  Y.  Supp.  1054;  28  Misc. 
Rep.  660.  Whether  the  declaration  in  a  will  that  testatrix  has  only  one  child 
living  is  sufficient  proof  of  that  fact:  Revol  v.  Stroudback,  107  La.  225;  31 
So.  Rep.  665.  The  fact  that  the  maker  of  a  power  of  attorney  was  describe! 
therein  as  "  Mrs."  when  she  did  not  sign  as  "  Mrs."  did  not  not  render  the  title 
unmarketable,  there  being  testimony  that  she  was  unmarried.  Kcvol  v. 
Stroudback,  107  La.  295;  31  So.  Rep.  665.  Where  property  was  devised  in 
trust  for  the  benefit  of  a  daughter,  but  by  codicil  the  trust  was  revoked  and 


772  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

unmarketable.1  Nor,  it  is  apprehended,  would  the  possibility  of 
the  discovery  of  a  later  will,  where  he  dies  testate,  have  that  effect, 
unless  there  were  circumstances  sufficient  to  raise  a  reasonable 
doubt  as  to  the  existence  of  such  a  will.  And  a  bare  possibility  that 
a  decedent  may  have  left  debts  for  which  his  property  would  be 
liable,  does  not  render  the  title  of  the  heir  doubtful,  in  the  absence 
of  anything  to  show  the  probable  existence  of  such  debts.2 

In  a  case  in  which  title  was  claimed  under  a  will  executed  in 
1861,  but  not  found  until  1892,  and  not  offered  for  probate  until 
1899,  after  objections  to  the  title  had  been  raised  by  a  purchaser 
at  a  mortgage  sale,  it  was  held  that  the  purchaser  could  not  be 
compelled  to  take  the  title  until  the  validity  of  the  will  had  been 

the  devise  to  the  daughter  made  absolute  and  unqualified,  the  power  of  the 
(laughter  to  convey  cannot  be  disputed,  and  a  purchaser  must  take  the  title. 
Senning  v.  Bush,  23  Ky.  Law  R.  65;  62  S.  W.  Rep.  489.  Defective  execution 
of  a  power  of  sale  under  a  will,  held  no  objection  to  the  title  thereunder, 
where  no  one,  for  more  than  forty  years,  has  attempted  to  take  advantage  of 
the  defect.  Binzen  v.  Epstein,  69  N.  Y.  Supp.  789;  58  App.  Div.  304. 
(Aff'd.)  Where  a  statute  authoribed  personal  representatives  to  specifi- 
cally perform  contracts  for  the  sale  of  lands  made  by  the  testator  or 
intestate  during  his  lifetime,  the  fact  that  a  testator  devised  all  of  his 
lands  to  his  children,  does  not  make  doubtful  or  unremarkable  the  title 
which  a  purchaser  of  a  part  of  such  lands  from  the  testator  in  his  lifetime, 
will  receive  from  the  executor.  The  statute  practically  avoids  the  devise. 
Hyde  v.  Heller,  10  Wash.  586;  39  Pac.  Rep.  249.  The  possibility  that  pro- 
bate of  a  will  may  be  revoked,  will  not  affect  the  title  of  a  purchaser  from 
the  executors  under  a  power  of  sale,  when  no  facts  appear  showing  that  pro- 
bate will  probably  be  revoked.  Nor  is  the  title  invalidated  by  a  failure  of 
the  executors  to  distribute  the  proceeds  of  the  sale  among  those  entitled. 
Seldner  v.  McCreery,  75  Md.  287;  23  Atl.  Rep.  641.  In  Baker  v.  Shy,  9 
Heisk.  (Tenn.)  89,  the  alienage  of  the  vendor's  grantor  was  held  not  to  ren- 
der the  title  unmarketable.  A  title  derived  through  a  grantor  who  held  for 
an  alien,  will  not  be  held  doubtful  or  unmarketable  because  the  grantor  had 
conveyed  without  a  previous  request  from  the  alien,  though  he  had  covenanted 
with  the  alien  to  convey  only  upon  such  request.  Ludlow  v.  Van  Ness,  8 
Bosw.  (N.  Y.)  178. 

'Moser  v.  Cochrane,  107  N.  Y.  35;  13  N.  E.  Rep.  442;  Schermerhorn  v. 
Niblo,  2  Bosw.  (N.  Y.)  161;  Disbrow  v.  Folger,  5  Abb.  Pr.  (N.  Y.)  53;  Mc- 
Dermott  v.  MeDermott,  3  Abb.  Pr.  (N.  S.)  (N.  Y.)  451,  dictum. 

'Moser  v.  Cochrane,  107  N.  Y.  35;  13  N.  E.  Rep.  442;  Spring  v.  Sandford, 
7  Paige  (N.  Y.),  550.  Keitel  v.  Zimmerman,  43  N.  Y.  Supp.  676;  19  Misc. 
Rep.  581.  Garden  City  L.  Co.  v.  Miller,  157  111.  225;  41  N.  E.  Rep.  753. 
Moore  v.  Taylor,  (Md.)  32  Atl.  Rep.  320.  In  Disbrow  v.  Folger,  5  Abb.  Pr. 
(X.  Y. )  53,  the  title  was  referred  to  a  master  for  the  purpose  of  ascertaining 
whether  any  such  debts  existed. 


OF    DOUBTFUL   TITLES.  773 

adjudicated  by  a  competent  tribunal.3  And  in  a  case  in  which  there 
had  been  no  administration  of  the  estate  of  a  decedent  through 
whom  the  title  had  descended,  and  a  .sufficient  time  had  not  elapsed 
to  raise  a  presumption  that  administration  would  not  yet  be 
granted,  the  mere  failure  of  the  purchaser  to  .show  that  there  were 
debts  due  by  the  estate,  was  held  no  ground  on  which  to  compel 
him  to  take  the  title.4  But  if  an  estate  be  ultimately  liable  to  the 
payment  of  legacies,  in  case  the  personalty  prove  insufficient,  the 
purchaser  cannot  be  compelled  to  take  the  title.5 

§  303-a.  Title  under  tax  laws.  As  tax  titles  depend  upon  a 
strict  compliance  with  all  the  provisions  of  law  under  which  tax 
sales  are  made,  and  as  such  sales  have  been  held  invalid  for  the 
most  trifling  matters,  e.  g.,  the  omission  of  the  dollar  mark  from 
the  head  of  a  column  of  figures  showing  the  amount  of  delinquent 
taxes  in  the  advertisement  of  sale,6  such  titles  have  come  to  be 
looked  upon  with  distrust  and  suspicion.  But  the  mere  fact  that 
the  vendor  holds  under  a  tax  title  will  not  justify  the  purchaser 
in  rejecting  the  title  as  unmarketable  in  those  States  in  which  tax 
sales  are  by  statute  declared  to  be  prima  facie  valid.  He  must 
be  able  to  point  out  some  particular  fact,  or  show  the  reasonable 
probability  of  the  existence  of  some  fact,  which  would  raise  a  fair 
question  as  to  the  validity  of  such  sale.7 

'Chew  v.  Tome,  93  Md.  244;  48  Atl.  Rep.  701. 

* Chauncey  v.  Leominster,  172  Mass.  340;  52  N.  E.  Rep.  719. 
.     '  1  Sugd.  Vend.  (8th  Am.)  ed.)  572.  Dickinson  v.  Dickinson,  3  Bro.  C.  C.  1». 
See,  also,  Platt  v.  Newman,  71  Mich.  112;  38  N.  \V.  Rep.  720. 

•Coombs  v.  O'Neal,  1  MacArth.   (D.  C.)  405. 

'Gates  v.  Parmly,  93  Wis.  294;  66  N.  W.  Rep.  253;  67  N.  W.  Rep.  739. 
Chopin  v.  Pollet,  48  La.  Ann.  1186;  20  So.  Rep.  721.  In  Matney  v.  Ratliff, 
96  Va.  231,  31  S.  E.  Rep.  512,  it  appeared  that  a  grantee  of  the  Common- 
wealth had  failed  to  enter  the  granted  lands  on  the  tax  books  and  to  pay 
taxes  thereon  for  a  number  of  years,  in  consequence  of  which  the  lands  were 
forfeited  to  the  Commonwealth.  It  was  held  no  objection  to  the  title  of  a 
subsequent  grantee  of  the  Commonwealth  that  there  was  no  judgment,  decree, 
inquest,  or  other  matter  of  record  showing  the  forfeiture  of  the  lands  to  the 
Commonwealth  by  default  of  the  first  grantee.  In  Fltzpatrick  v.  Leake.  47 
La.  1643;  18  So.  Rep.  649,  it  was  held  that  the  purchaser  could  not  l>e  com- 
pelled to  take  the  title  unless  the  tax  deed  was  produced  and  its  prima  facie 
effect  was  unimpaired  by  tfstimony.  ^liere  the  vendor  hold  under  a  tnx  sale, 
with  a  right  in  minors  and  others  not  sul  juris  to  redeem  from  the  sale 
within  a  year  after  removal  of  disabilities,  it  was  held  that  an  agreement 


774  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

§  304.  INCUMBBANCBS.  As  a  general  rule  an  incumbranee 
upon  the  premises,  so  long  as  it  may  be  removed  by  application  of 
the  purchase  money,  or  where  the  vendor  being  solvent,  offers  to 
remove  it  or  may  be  compelled  to  do  so,  furnishes  no  ground  upon 
which  the  purchaser  may  refuse  to  complete  the  contract,  or  recover 
damages  against  the  vendor.8  But  if  both  parties  enter  into  the 
contract  writh  the  express  understanding  that  the  premises  are  free 
and  clear  of  incumbrances,  it  may  be  doubted  whether  the  pur- 
chaser would  be  compelled  to  take  subject  to  an  incumbranee,  even 
though  it  could  be  discharged  out  of  deferred  payments  of  the  pur- 
chase money.9  If,  however,  the  purchase  money  be  presently  due 
and  the  vendor  can  produce  some  one  who  is  competent  to  receive 
payment  of  the  incumbranee  and  execute  a  release  or  satisfaction 
piece,  no  reason  is  perceived  why  the  purchaser  should  not  be 
•compelled  to  complete  the  contract.10  The  cases  in  which  the  exist- 
ence of  an  incumbranee  upon  the  premises  will  justify  the  pur- 
chaser in  refusing  to  go  on  with  the  purchase,  until  the  objection 
be  removed,  may  be  thus  classified:  (1)  Those  in  which  the  exist- 
ence of  the  incumbranee  is  admitted,  or  free  from  doubt;  and  (2) 
those  in  which  the  fact  or  existence  of  the  incumbranee  is  a  matter 
of  doubt  or  dispute. 

by  him  to  perfect  the  title  was  not  performed  by  obtaining  a  decree  quieting 
his  title  against  unknown  claimants.  Williams  v.  Doolittle,  (Iowa)  88  N. 
W.  Rep.  350. 

8  2  Sugd.  Vend.  (8th  Am.  ed.)  25  (425).  The  general  rule  is  that  a 
pecuniary  charge  upon  the  estate  presents  no  objection  to  the  title  if  the 
purchaser  can  be  protected  against  it.  Cox  v.  Coventon,  31  Beav.  378;  Wood 
v.  Majoribanks,  3  De  G.  &  J.  329';  7  H.  L.  Cas.  806.  Tiernan  v.  Roland,  15 
Pa.  St.  441.  Pangborn  v.  Miles,  10  Abb.  N.  Cas.  (N.  Y.)  42.  Brewer  v. 
Herbert,  30  Md.  301;  96  Am.  Dec.  582,  a  case  in  which  the  decree  provided 
that  the  incumbranee,  a  judgment  against  the  vendor,  be  paid  out  of  the  pur- 
chase money.  The  vendor  had  also  appealed  from  the  judgment  and  executed 
an  appeal  bond  covering  the  judgment  and  costs. 

•Karker  v.  Haverly,  50  Barb.  (N.  Y.)  79;  Chambers  v.  Tulane,  9  N.  J.  Eq. 
146.  Spencer  v.  Sandusky,  46  W.  Va.  582;  33  S.  E.  Rep.  221.  An  obvious 
reason  for  this  position  is,  that  the  existence  of  the  incumbranee  might  pre- 
vent an  advantageous  resale  by  the  purchaser.  Besides  if  the  purchaser,  for 
reasons  satisfactory  to  himself,  chooses  to  insist  upon  a  provision  that  the 
premises  shall  be  free  of  incumbrances,  who  shall  gainsay  him,  when  he  insists 
upon  a  literal  performance  of  the  agreement? 

10 Webster  v.  Kings  Co.  Trust  Co.,  80  Hun  (N.  Y.),  420;  30  N.  Y.  Supp. 
357. 


OF    DOUBTFUL   TITLES.  775 

§  305.  (i)  Admitted  incumbrances.  We  have  seen  that  an  ad- 
mitted pecuniary  charge  or  lien  upon  the  premises  will  excuse  the 
purchaser  from  completing  the  contract  unless  the  purchase  money 
can  be  applied  to  its  removal  without  subjecting  him  to  loss,  in- 
convenience or  expense.11  The  vendor  has  a  right  to  perfect  the 
title  by  removing  incumbrances.12 

Strictly  speaking,  an  incumbrance  is  not  a  defect  in  the  title  to- 
an  estate,13  though  such  a  defect  may  amount  to  an  incumbrance. 
The  technical  legal  definition  of  the  word  "  incumbrance,"  as  it 
relates  to  real  property,  is,  'any  right  to  or  interest  in  the  land 
granted,  to  the  diminution  of  the  value  of  the  land,  but  consistent 
with  the  passing  of  the  fee  by  a  conveyance  of  the  land.14  Hence, 
technically  the  legal  title  may  be  perfect,  though  the  estate  be 
incumbered  to  its  full  value,  for  the  incumbrances  may  be  paid  off 
and  the  incumbrancer  compelled  to  execute  a  release.  But,  if  the 
title  be  imperfect,  if  the  better  right  be  outstanding  in  a  stranger, 
there  is  no  way  in  which  his  claim  can  be  quieted  without  his 
consent.  The  courts,  however,  speak  indifferently  of  incumbrances 
as  well  as  adverse  claims  as  constituting  defects  of  title,  and  for  all 
practical  purposes  they  may  be  so  regarded,  especially  if  they  be  of 
the  irremovable  kind,  such  as  easements,  rights  of  way  and  other 
incorporeal  rights. 

A  purchaser  cannot  be  compelled  to  complete  his  purchase  or    t 
accept  the  title  if  there  is  an  incumbrance  on  the  property  which 
the  vendor  cannot  or  will  not  remove,  and  which  the  purchaser 
cannot  himself  remove  by  an  application  of  the  purchase  money." 
Of  this  kind  are  easements,  servitudes,  rights  of  way,1'  reserva- 

11  Ante,  §  245. 

11  Post,  ch.  32;  ante,  ch.  19. 

"  Heimburg  v.  Ismay,  35  N.  Y.  Super.  Ct.  35.  Stephen's  Appeal,  87  Pa.  St. 
207;  Tiernan  v.  Roland,  3  Harris  (Pa.),  441. 

14  Prescott  v.  Trueman,  6  Mass.  627 ;  3  Am.  Dec.  249. 

18 1  Sugd.  Vend.   (8th  Am.  ed.)  473   (312). 

18  Shackelton  v.  Sutcliff,  1  De  G.  A  Sm.  609.  Scripture  v.  Morris,  56  N.  Y. 
Supp.  476;  38  App.  Div.  377.  Kerrigan  v.  Backus,  74  N.  Y.  Supp.  906;  69 
App.  Div.  329;  Scott  v.  Beutel,  23  Gratt.  (Va.)  873.  Hart  v.  Handlin,  43  Mo. 
171,  where,  however,  the  purchaser  was  deemed  to  have  waived  the  objection. 
The  purchaser  of  a  tanyard  cannot  be  compelled  to  take  the  premises  subject 
to  an  easement  in  the  stream  supplying  the  yard.  Wheeler  v.  Tracy,  49  N. 
Y.  Super.  Ct.  208.  A  right  on  the  part  of  a  third  person  to  have  a  drain  pipe 


776  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

tions    of   minerals,17    building    restrictions,18   restrictions    as    to 

and  water  pipe  across  the  premises  sold,  to  the  maintenance  of  which  the 
purchaser  must  contribute,  is  a  servitude  upon  the  property  amounting  to  an 
incumbrance,  and  entitles  the  purchaser  to  rescind.  Kearney  v.  Hogan,  154 
Pa.  St.  112;  25  Atl.  Rep.  1076.  A  space  to  be  left  for  roads  and  levees  by 
riparian  owners  is  a  legal  servitude  and  does  not  constitute  an  inmumbrance. 
Bourg  v.  Niles,  6  La.  Ann.  77.  A  dedication  of  a  part  of  the  premises  as  a 
street  is  a  fatal  objection  to  the  title.  Turner  v.  Reynolds,  81  Cal.  214;  23 
Pac.  Rep.  546.  Koshland  v.  Spring,  116  Cal.  689;  48  Pac.  Rep.  58.  A  right 
in  third  persons  to  pipe  away  water  from  a  spring  on  the  premises,  entitles 
the  purchaser  to  relief.  Melick  v.  Cross,  62  N.  J.  Eq.  545;  51  Atl.  16.  The 
existence  of  a  highway  on  the  land,  at  best,  only  entitles  the  purchaser  to  a 
reduction  of  the  purchase  money  by  the  amount  that  such  highway  reduces 
the  value  of  the  tract.  Beach  v.  Hudson  R.  Land  Co..  65  X.  J.  Eq.  426;  56 
Atl.  Rep.  157.  Mere  non-user  of  the  right  of  way,  though  for  a  period  of 
more  than  twenty  years,  is  not  sufficient  to  extinguish  the  right,  in  the  absence 
of  evidence  of  acts  and  possession  hostile  to  the  exercise  of  the  right.  Marshall 
v.  Wenninger,  46  N.  Y.  Supp.  462;  20  Misc.  Rep.  558.  The  selection  and 
adoption  of  a  railroad  right  of  way  across  the  premises,  evidenced  by  a  plan 
or  map  of  the  route  returned  by  the  company's  engineers  to  its  office,  is  such 
an  incumbrance  as  justifies  the  purchaser  in  rejecting  the  title,  though  the 
vendor  has  not  been  completely  divested  of  his  title  to  the  "  right  of  way  " 
land  by  payment  of  the  damages.  Johnston  v.  Gallery,  184  Pa.  St.  146 ;  39 
Atl.  Rep.  73.  A  covenant  running  with  the  land,  limiting  the  depth  to  which 
foundations  might  be  sunk  on  a  dividing  line,  and  providing  for  the  protec- 
tion of  existing  foundations  in  case  of  building,  is  an  incumbrance  justifying 
rejection  of  the  title.  Leinhardt  v.  Kalcheim,  79  N.  Y.  Supp.  500;  39  Misc. 
Rep.  308.  Where  the  evidence  showed  that  the  road  or  street  had  been  aban- 
doned by  the  municipal  authorities  and  the  public  for  more  than  twenty-five 
years,  houses  having  in  the  meanwhile  been  built  across  it,  the  purchaser  was 
compelled  to  complete  the  contract.  Baldwin  v.  Trimble,  85  Md.  396;  37  Atl. 
Rep.  176;  36  L.  R.  A.  489. 

"  1  Sugd.  Vend.  (8th  Am.  ed.)  473  (312)  Adams  v.  Henderson,  168  U.  S. 
573 ;  18  Sup.  Ct.  Rep.  179.  A  reservation  of  mineral  rights  is  no  objection  to 
the  title  if  the  evidence  shows  that  there  is  no  reason  to  believe  that  there 
are  minerals  in  the  land.  Winne  v.  Reynolds,  6  Paige  (N.  Y. ),  407. 

"Wetmore  v.  Bruce,  54  N.  Y.  Super.  Ct.  149;  Gilbert  v.  Peteler,  38  N.  Y. 
165;  97  Am.  Dec.  785;  Reynolds  v.  Cleary,  61  Hun  (N.  Y.),  590;  16  N.  Y. 
Supp.  421;  Nathan  v.  Morris,  62  Hun  (N.  Y.),  452;  17  N,  Y.  Supp.  13; 
Kountze  v.  Hellmuth,  67  Hun,  344;  22  N.  Y.  Supp.  204.  Roussel  v.  Lux,  80 
X.  Y.  Supp.  341;  39  Misc.  Rep.  508.  Jeffries  v.  Jeffries,  117  Mass.  184; 
McGlynn  v.  Maynz,  104  Mass.  263.  A  restriction  against  building  wifhin  a 
certain  distance  of  a  street  line  is  an  incumbrance  not  susceptible  of  pecuniary 
compensation.  Adams  v.  Valentine,  33  Fed.  Rep.  1  (N.  Y.).  As  to  whether 
building  restrictions  run  with  the  land  and  bind  subsequent  purchaser1*,  see 
Trustees  v.  Lynch,  70  N.  Y.  440;  26  Am.  Rep.  615;  Post  v.  Weil,  115  N.  Y. 
361;  22  N.  E.  Rep.  145.  In  Hoyt  v.  Ketcham,  54  Conn.  60;  5  Atl.  Rep.  606, 
it  was  held  that  a  restriction  against  cheap  buildings  was  an  interest  which 


OF    DOUBTFUL   TITLES.  777 

uses,19  unexpired  leases,20  charges  upon  the  property  for  the  support 
of  particular  persons,21  inchoate  rights  of  dower,22  outstanding  life 

the  grantor  or  his  executor,  with  power  to  convey,  might  release  by  quit- 
claim deed  to  the  holder  of  the  title,  and  that  such  release  removed  an  objec- 
tion to  the  title  founded  on  the  restriction.  A  condition  that  no  mill,  factory, 
brewery  or  distillery  shall  be  erected  on  the  premises  makes  the  title  unmar- 
ketable. Batley  v.  Foerderer,  162  Pa.  St.  400;  29  Atl.  Rep.  8G8.  A  building 
restriction  created  by  a  former  owner  is  not  removed  by  a  subsequent  sale 
of  the  premises  for  taxes,  and,  therefore,  remains  a  substantial  objection  to 
the  title.  Lesley  v.  Morris,  9  Phila.  (Pa.)  110;  30  Leg.  Int.  108.  Building 
restrictions  are  no  ground  on  which  the  title  may  be  rejected,  where  they 
amount  to  a  mere  personal  covenant  not  running  with  the  land,  and  the 
covenant  has  been  discharged  by  a  conveyance  of  the  land.  Krekeler  v.  Aul- 
bach,  64  N.  Y.  Supp.  908;  51  App.  Div.  591. 

19  Dart  V.  &  P.   (5th  ed.)    119,  where  it  is  said  that  a  covenant  against  cer- 
tain trades  being  carried  on  on  the  premises  is  a  serious  defect  in  the  title 
and  should  be  stated  in  the  particulars.     Darlington  v.  Hamilton,  Kay,  550; 
Bartlett  v.  Salmon,  1  Jur.  (N.  S.)  278;  6  De  G.,  M.  &  G.  33.    Supervisors  v. 
Bedford  High  School,  92  Va.  292 ;  23  S.  E.  Rep.  299.     Premises  not  to  be  used 
as  a  slaugMer-house,  Raynor  v.  Lyon,  46  Hun    (X.  Y. ),  227;  tavern,  Post  v. 
Weil,  8  Hun  (N.  Y.),  418;  reversed  in  115  N.  Y.  361 ;  22  N.  E.  Rep.  145,  on 
ground  that  subsequent  purchaser  was  not  bound  by  the  restriction ;  for  any 
dangerous  or  offensive  occupation,  Terry  v.  Westing,  5  N.  Y.  Supp.  99.     Any 
restriction  of  the  right  to  use  the  land  for  any  and  all  reasonable  purposes  is 
an  incumbrance.     Terry  v.  Westing,  5  N.  Y.  Supp.  !>9.    Van  Schaick  v.  Lese, 
66  N.  Y.  Supp.  64;  Si  Misc.  Rep.  610.     A  covenant  by  a  prior  grantee  not  to 
create  a  nuisance  on  the  premises  is  not  an  incumbrance  to  which  a  purchaser 
may  object  as  a  defect  in  the  title,  since  the  covenant  is  no  more  than  what 
the  law  would  oblige  the  grantee  to  refrain  from  doing  independently  of  con- 
tract.    Clement  v.  Burtis,  121  N.  Y.  708;   24  N.  E.  Rep.  1013.     A  covenant 
binding  the  land  that  no  intoxicating  liquors  should  ever  be  manufactured  or 
sold  on  the  premises,  renders  the  title  unmarketable.     Scudder  v.  Watt,  90 
N.  Y.  Supp.  COS;  98  App.  Div.  40. 

20  Judson  v.  Wass,  11  Johns.  (N.  Y.)  525;  6  Am.  Dec.  392;  Tucker  v.  Wood, 
12  Johns.   (N.  Y.)    190;  7  Am.  Dec.  305;  Fuller  v.  Hubbard,  6  Cow.   (N.  Y.) 
13;   16  Am.  Dec.  423;  Green  v.  Green,  9  Cow.   (N.  Y.)   46.     Warner  v.  Hat- 
field,  4  Bl.   (Ind.)   392.     Coves  v.  Hallahan,  209  Pa.  St.  224;  58  Atl.  Rep.  158. 
«A.  covenant  for  renewal  of  a  lease,  of  which  neither  party  is  advised,  relieves 
a  purchaser  from  his  agreement  to  take  subject  to  the  unexpired  lease.     Fru- 
hauf  v.  Bendheim,  6  N.  Y.  Supp.  264;  affd.,  127  N.  Y.  587;  28  N.  E.  Rep. 
417. 

"As  to  effect  and  validity  of  condition  to  support  grantor,  see  Spaulding 
v.  Hollenbeck,  35  N.  Y.  204.  Leach  v.  Leach,  4  Ind.  628.  Berryman  v. 
Schumaker,  67  Tex.  312. 

"Sugd.  Vend.  572,  575  (382.  384).  Parks  v.  Brooks.  16  Ala.  520.  Lewis 
v.  Coxe,  5  Harr.  (Del.)  401.  Andrews  v.  Word.  17  B.  Mon.  (Ky.)  TilS.  Por- 
ter v.  Noyes,  2  Greenl.  (Me.)  22 :  1 1  Am.  Dor.  .°0.  Clarke  v.  Redman.  1  Bl. 
(Ind.)  379.  Contract  for  "good  and  lawful  title,"  or  conveyance  "free  from 


778  MARKETABLE    TITLE    TO    REAL    ESTATE. 

interests,1*  outstanding  contract  interests,24  proceedings  in  eminent 
domain25  and  the  like.  Wherever  these  materially  lessen  the  value 
of  the  premises  and  cannot  be  compensated  for  by  way  of  damages 
or  abatement  of  the  purchase  money,  specific  performance  at  the 
suit  of  the  vendor  will  be  denied.2*  And  the  fact  that  the  vendor 
is  solvent  and  able  to  respond  in  damages  for  a  breach  of  the 
contract  is  no  ground  upon  which  the  purchaser  can  be  compelled 
to  accept  the  incumbered  title.27 

The  owner  of  a  lot  subject  to  a  local  building  restriction  has  no 
such  equitable  easement  in  the  other  lots  subject  to  that  restric- 

incunibranee,"  obliges  vendor  to  furnish  a  deed  with  relinquishment  of  con- 
tingent right  of  dower.  Thrasher  v.  Pinkard,  23  Ala.  616.  Estep  v.  Watkins, 
1  Bland  (Md.),  486.  Polk  \.  Sumter,  2  Strobh.  (S.  C.)  81.  Jones  v.  Gard- 
ner, 10  Johns.  (N.  Y.)  266.  Heimburg  v.  Ismay,  35  N.  Y.  Super.  Ct.  35. 
Fitts  v.  Hoitt,  17  N.  H.  530.  Goodkind  T.  Bartlett,  153  111.  419;  38  N.  E. 
Eep.  1045.  Cowan  v.  Kane,  211  I1L  572;  71  N.  E.  Rep.  1097.  A  statute 
mereh  authorizing  the  sale  of  the  property  of  lunatics  does  not  authorize 
the  court  or  its  officers  to  execute  a  deed  which  will  bar  a  lunatic  wife  of  her 
inchoate  right  of  dower,  and  a  purchaser  from  the  husband  and  committee 
of  a  lunatic  is  not  bound  to  accept  such  a  deed.  Dunn  T.  Huether,  64  Hun 
(N.  Y.),  18;  18  N.  Y.  ^npp.  723.  Where  a  wife  was  a  party  to  a  junior 
mortgage,  but  was  not  a  party  to  the  senior  mortgage  and  the  junior  mort- 
gage was  foreclosed,  and  the  purchaser  thereunder  made  a  party  to  a  suit  to 
foreclose  the  senior  mortgage,  it  was  held  that  the  sale  under  the  junior 
mortgage  extinguished  the  wife's  inchoate  dower  right,  and  that  a  title 
under  the  foreclosure  of  the  senior  mortgage  was  free  from  any  claim  on  the 
part  of  the  wife.  Calder  v.  Jenkins,  16  N.  Y.  Supp.  797. 

a  Griffith  v.  Maxfield,  63  Ark.  548;  39  S.  W.  852;  Dikeman  *.  Arnold, 
71  Mich.  656;  40  N.  W.  Rep.  42.  In  this  case  vendor  was  seised 
in  fee  of  a  part  of  the  estate  and  entitled  to  a  vested  remainder 
in  fee  as  to  the  other  part.  It  was  held  that  the  purchaser  could 
not  be  compelled  to  accept  a  conveyance  of  the  whole  and  rely  on  his  grantor's 
covenants  of  warranty  in  case  he  should  be  disturbed  by  the  owner  of  the 
precedent  particular  estate. 

51  Gates  v.  Parmly,  93  Wis.  294;  66  X.  W.  Rep.  253;  67  N.  W.  Rep.  739.    , 

sCavanaugh  v.  McLaughlin,  38  Minn.  83:  35  N.  W.  Rep.  576.  Evans  T. 
Taylor,  177  Pa.  286;  35  Atl.  635.  But  in  Wagner  v.  Perry,  47  Hun  (X.  Y.), 
516,  it  was  held  that  the  mere  filing  of  a  map  by  street  commissioners,  con- 
taining a  plan  for  widening  a  street,  the  effect  of  which  would  be  to  cnt  off 
a  part  of  a  lot  sold,  would  not  entitle  the  purchaser  to  rescind  the  contract; 
the  title  not  being  affected  until  actual  proceedings  had  been  taken  to  widen 
the  street  and  they  might  never  be  taken.  See,  however,  Forster  v.  Scott, 
136  X.  Y.  577;  32  N.  E.  Rep.  976,.  and  Darnell  v.  Shaw,  166  Mass.  582;  44 
X.  E.  Rep.  991,  where  a  different  view  seems  to  have  been  entertained. 

*O"Kane  T.  Riser,  25  Ind.  168. 

^Ante,  §§  85,  246. 


OF    DOUBTFUL   TITLES.  779 

tion  as  will  entitle  him  to  require  the  observance  of  the  restriction, 
hence  the  violation  of  such  restriction  by  other  owners  in  the 
vicinity  constitutes  no  incuinbrance  or  defect  in  his  title  to  which 
a  purchaser  may  object.28 

The  rights  of  proprietors  in  a  stream  within  the  limits  of  their 
own  respective  properties  are  not  easements  with  respect  to  other 
persons  through  whose  premises  the  stream  flows ;  hence,  the  fact 
that  a  stream  flows  through  the  purchased  land  can  be  no  objection 
to  the  title.  The  purchaser  is  bound  to  take  notice  of  the  physical 
condition  of  the  property,  and  his  contract  is  conclusively  presumed 
to  have  been  made  subject  to  such  condition.29  A  contract,  to  give 
a  "  good  and  sufficient  title,"  will  not  oblige  the  vendor  to  ex- 
tinguish a  perpetual  rent  charge  on  the  premises,  where  the  con- 
tract expressly  provides  that  the  purchaser  shall  take  subject  to  such 
charge.30  Where  the  contract  refers  to  the  land  sold  as  the  same 
described  in  a  certain  deed,  and  provides  for  a  conveyance  of  the 
same  free  from  incumbrances,  and  a  deed  is  tendered  describing 
the  land  precisely  as  described  in  the  deed  referred  to,  the  pur- 
chaser cannot  reject  such  deed  on  the  ground  that  there  is  a  private 
right  of  way  over  the  premises.81 

A  party  wall  standing  equally  upon  the  land  of  both  parties,  is 
not,  it  seems,  such  an  incumbrance  as  will  justify  the  purchaser 
in  rejecting  the  title.32  But  it  was  held  that  he  was  entitled  to 
rescind  in  a  case  in  which  the  wall  stood  wholly  upon  the  premises 
sold,  and  there  was  a  perpetual  covenant  running  with  the  land 
which  bound  the  owner  to  share  equally  with  the  adjoining  owner 
the  expense  of  repairing  or  rebuilding  the  wall,  and  required  that 
when  rebuilt  tV-e  wall  should  be  of  the  same  size  and  like  materials.** 

The  existence  of  a  party  wall  covenant,  is,  of  course,  no  ob- 

"Mead  v.  Martens,  47  N.  Y.  Supp.  299;  21  App.  Div.  134. 

"Archer  v.  Archer,  84  Hun  (N.  Y.),  297;  32  N.  Y.  Supp.  410. 

"Topliff  v.  Atlanta  Land  &  Imp.  Co.,  66  Fed.  Rep.  853;  13  U.  S.  App.  733. 

"Heppenstall  v.  O'Donnell,  165  Pa.  St.  438;  30  Atl.  Rep.  1003. 

"Hendricks  v.  Stark,  37  N.  Y.  106.  (Compare  Corn  v.  Bass,  59  N.  Y. 
Supp.  315;  43  App.  Div.  53.)  Levy  v.  Hill,  75  N.  Y.  Supp.  19;  70  App. 
Div.  95;  Scannel  v.  Soda  Fountain  Co.,  161  161  Mo.  600;  61  S.  W.  Rep.  889. 

"O'Neil  v.  Van  Tassel,  137  N.  Y.  297;  33  N.  E.  Rep.  314,  distinguishing 
Hendricks  v.  Stark,  supra.  (Compare  Schaefer  v.  Bluinenthal,  169  N.  Y. 
169  N.  Y.  221;  62  N.  E.  Rep.  175.) 


MARKETABLE    TITLE    TO    REAL    ESTATE. 

jection  to  the  title  if  the  covenant  be  so  drawn  as  not  to  run  with 
the  land;  as  where  it  was  specifically  provided  that  the  covenant 
should  remain  in  force  so  long  as  the  parties,  or  their  legal  repre- 
sentatives, should  hold  the  title.34 

We  have  seen  that  the  purchaser  cannot  refuse  to  complete  the 
contract  if  he  was  informed  of  the  existence  of  the  incumbrance 
when  he  purchased.35  But  if  the  vendor  represent  that  there  are 
incumbrances  to  a  certain  extent  only  on  the  property,  and  other 
incumbrances  appear,  the  purchaser  cannot  be  compelled  to  go  on 
with  the  contract.36  Or  if  the  purchaser  protects  himself  by  a 
positive  provision  in  the  contract  that  there  shall  be  no  incum- 
brance on  the  title,  the  fact  that  he  knew  of  an  incumbrance,  such 
as  an  unopened  street  across  the  property  at  the  time  of  the  con- 
tract, is  immaterial  and  he  cannot  be  compelled  to  pay  the  pur- 
chase money.27 

§  306.  (2)  Incumbrances  which  make  the  title  doubtful.  If 
there  be  serious  doubts  as  to  whether  an  incumbrance  upon  the 
premises,  apparent  from  the  records,  has  not  been  satisfied,  or  if 
there  be  an  issue  or  dispute  between  the  vendor  and  the  incum- 
brancer  as  to  that  fact,  the  purchaser  will  not  be  required  to  take 
a  title  so  burdened.38  He  will  not  be  compelled  to  buy  a  law  suit. 

MKahn  v.  Mount,  61  N.  Y.  Supp.  358;   46  App.  Div.  84. 

"Ante,  §   85. 

36  Park  v.  Johnson,  7  Allen  (Mass.-),  378.  In  Blanck  v.  Sadlier,  153  N.  Y. 
551;  47  N.  E.  Rep.  520,  it  was  held  that  one  who  purchased  at  an  auction 
sale  in  1894,  subject  to  a  mortgage,  was  not  entitled  to  rescind  and  recover 
his  deposit  on  the  ground  that  the  conditions  of  sale  failed  to  state  that 
the  mortgage  was  payable  in  gold  instead  of  currency,  there  being  no  proba- 
bility that  the  United  States  would,  during  the  life  of  the  mortgage  (three 
years)  refuse  to  redeem  its  obligations  in  gold. 

"Evans  v.  Taylor,  177  Pa.  286;   35  Atl.  635. 

38  Rife  v.  Lybarger,  49  Ohio  St.  429;  31  N.  E.  Rep.  768.  In  Richards  v. 
Mercer,  1  Leigh  (Va.),  125,  a  purchaser  was  compelled  to  complete  the  con- 
tract, though  there  was  a  mortgage  on  the  premises,  and  nothing  but  "  strong 
grounds  "  for  believing  that  it  had  been  satisfied.  In  Wesley  v.  Eels.  177 
U.  S.  370;  Sup.  Ct.  Rep.  the  vendor  claimed  that  a  purchase-money 
mortgage  on  the  premises  in  favor  of  the  State  of  South  Carolina  had  been 
discharged,  under  the  laws  of  that  state  by  a  tender  of  certain  "  revenue 
bond-scrip  "  issued  by  the  state.  The  state  courts  having  decided  that  the 
issue  of  such  paper  by  the  state  was  unlawful  the  Supreme  Court  held  that 
the  purchaser  could  not  be  compelled  to  take  the  title  with  the  burden  of 
showing  the  error  of  that  decision  in  future  litigation. 


OF    DOUBTFUL   TITLES.  781 

Especially  does  this  rule  apply  where  the  doubts  about  the  dis- 
charge of  the  incumbrance  must  be  removed  by  parol  testimony, 
and  the  lapse  of  time  is  constantly  decreasing  the  means  for  that 
purpose.39  Neither  will  the  purchaser  be  compelled  to  complete  the 
contract  when  the  existence  of  the  incumbrance,  or  its  extension 
to  the  purchased  premises,  is  a  doubtful  question  of  law  or  fact.40 
Xor  where  the  incumbrance  is  inchoate  and  undetermined  in  its 
Character,  e.  g.,  an  attachment  levied  upon  the  estate  of  the  vendor 
in  the  land.41  But  it  has  been  held  that  a  lis  pendcns  without 
evidence  to  show  that  it  is  founded  upon  a  just  claim,  is  no  such 
incumbrance  as  will  justify  a  purchaser  in  refusing  to  perform  the 
contract.42  And  a  mortgage  duly  executed,  acknowledged  and  re- 

"  Moore  v.  Williams,  115  N.  Y.  586;  22  N.  E.  Rep.  233. 

40  Dyker  Meadow  L.  &  I  Co.  v.  Cook,  159  N.  Y.  6 ;  53  N.  E.  Rep.  690.    An 
excellent  illustration  of   this  proposition  is  afforded  by  the  well-considered 
case  of  Moore  v.  Williams,  115  N.  Y.  586;   22  N.  E.  Rep.  233;  23  Abb.  N. 
Cas.  404.     There  the  vendor,  in  answer  to  the  objection  that  a  certain  judg- 
ment against  a  prior  owner  was  a  lien  upon  the  land,  attempted  to  show  that 
the  land,  at  the  time  of  the  judgment,  was  the  property  of  a  firm  of  which 
the  judgment  debtor  was  a  member,  and,  consequently,  was  not  bound  by  the 
judgment.     But  the  court  held  that  the  purchaser  could  not  be  compelled  to 
take  the  title  so  incumbered,  since  he  might  not  have  the  means  of  showing 
the  facts  respecting  the  judgment,  if  his  title  should  afterwards  be  questioned 
or  attacked.     In  Richmond  v.  Koenig,  43  Minn.  480;  45  N.  W.  Rep.  1093, 
the  objection  to  the  title  was  that  there  were  unsatisfied  judgments  against 
a   former  owner  of  the  land.     The   vendor  replied  that  the  judgments  were 
not  liens  because  the  land  was  the  homestead  of  the  former  owner.     There 
were  facts  in  evidence  which  made  it  doubtful  whether  such  owner  had  lost 
his    right   of   homestead   by  leaving   the   State,   and    it   was    held    that   the 
purchaser   could   not  be  compelled    to  complete   the   contract.      A   judgment 
appearing  on  the  record  against  a  joint  defendant,  who  was  not  served  with 
process,  is  no  lien  on  his  land,  and  therefore  no  ground  of  objection  to  his 
title.     Wessel  v.  Cramer,  67  N.  Y.  Supp.  425;  56  App.  Div.  30.    A  judgment 
is   also   no   ground   of   objection   to   his   fitle   if  the   time   during   which   by 
statute,  it  is  a  charge  or  lien  on  lands,  has  expired.     Wessel  v.  Cramer,  67 
N.  Y.  Supp.  425;  56  App.  Div.  30. 

41  Linton  v.  Hichborn,  126  Mass.  32.     Attachment  will  not  avoid  the  sale 
if  the  vendor  is   willing  to   permit  the  purchaser  to   retain   enough   of  the 
purchase  money  to  indemnify  him  against  a  possible  judgment  against  the 
former.     Borden  v.  Borden,  5  Mass.  67;  4  Am.  Dec.  32. 

"Ante,  §§  124,  290.  Wilsey  v.  Dennis,  44  Barb.  (N.  Y.)  354.  Compare 
Earl  v.  Campbell,  14  How.  Pr.  (N.  Y.)  330.  Of  course,  an  attachment  pro- 
oured  by  collusion  of  the  purchaser  is  no  ground  of  objection  to  the  title. 
Brown  v.  Bellows,  4  Pick.  (Mass.)  179.  And  if  the  attachment  and  W« 
pendens  be  discharged  before  decree,  the  vendor  will  be  entitled  to  specific 


782  MARKETABLE    TITLE    TO    HEAL    ESTATE. 

corded,  but  not  accepted  by  the  mortgagee,  and,  therefore,  of  no 
force  and  effect,  though  apparently  a  lien  upon  the  premises,  is  no 
ground  upon  which  a  purchaser  can  rescind  the  contract.43  So, 
also,  a  mortgage  invalid  because  executed  by  one  having  no  au- 
thority, creates  no  objection  to  the  title.44  After  a  judgment  for 
the  defendant,  on  the  issue  of  payment,  in  a  suit  to  recover  the 
amount  of  the  incumbrance  from  him  as  a  personal  liability,  to 
which  suit  all  persons  in  interest  were  parties,  the  incumbrance  no 
longer  presents  an  objection  to  the  title.45 

In  a  case  in  which  the  grantee  reconveyed  the  premises  by  way 
of  mortgage^  to  the  grantor,  and  afterwards  reconveyed  them  by 
absolute  deed  to  the  grantor,  it  was  held  that  the  latter  conveyance 
extinguished  the  mortgage,  the  legal  and  equitable  estate  having 
become  united  in  one  and  the  same  person ;  the  lesser,  the  equitable 
estate,  having  become  merged  in  the  greater,  the  legal  estate. 
Hence,  a  subsequent  purchaser  of  the  legal  estate  could  not  reject 
the  title  on  the  ground  that  the  mortgage  was  an  outstanding  lien 
on  the  property.46 

The  rule  that  a  purchaser  cannot  be  compelled  to  take  a  doubtful 
title  applies  as  well  where  the  doubt  is  as  to  the  existence  and 
enforceability  of  an  incumbrance  upon  the  premises  as  where  the 
doubt  is  as  to  existence  of  some  fact,  or  the  construction  of  some 
instrument  upon  which  the  title  is  founded.47  Thus,  where  the  pur- 
performance.  Daniel  v.  Smythe,  5  Bi  Mon.  (Ky.)  347.  Haffey  v.  Lynch,  143 
N.  Y.  241 ;  38  N.  E.  Rep.  298. 

^Wilsey  v.  Dennis,  44  Barb.    (N.  Y.)   354. 

**  Glasscock  v.  Robinson,  21   Miss.  85. 

"Young  v.  Hervey,  207  Pa.  396;  56  Atl.  946. 

"Krekeler  v.  Aulbach,  64  N.  Y.  Supp.  908;  51  App.  Div.  591. 

17  In  Garnett  v.  Macon,  6  Call  (Va.),  308,  369,  it  was  claimed  that  the 
rule  that  a  purchaser  could  not  be  compelled  to  take  a  doubtful  title  did  not 
apply  where  the  objection  was  that  the  estate  was  incumbered.  But 
MABSHAIX,  Ch.  J.,  said :  "  This  allegation  is  not,  I  think,  entirely  correct. 
The  objection  is  not  entirely  confined  to  cases  of  doubtful  title.  Tt  applies 
to  incumbrances  of  every  description  which  may  in  any  manner  embarrass 
the  purchaser  in  the  full  and  quiet  enjoyment  of  his  purchase.  In  Rose  v. 
Calland,  5  Ves.  189,  the  property  was  stated  to  be  free  of  hay  tithe,  and 
there  was  much  reason  to  believe  that  the  statement  was  correct.  But  the 
point  being  doubtful,  the  bill  of  the  vendor  praying  a  specific  performance 
was  dismissed.  There  is  certainly  a  difference  between  a  defined  ard  ad- 
mitted charge,  to  which  the  purchase  money  may  by  consent  be  applied  when 


OF    DOUBTFUL   TITLES.  783 

chaser  objected  that  the  premises  were  subject  to  a  railroad  mort- 
gage, and  the  vendor  insisted  that  the  railroad  company  had  no 
power  to  execute  the  mortgage,  and  that  the  mortgage  was  further 
invalid  in  that  it  contained  no  particular  description  of  the  prop- 
erty which  it  was  intended  to  cover,  the  court  held  the  purchaser's 
objection  good,  without  deciding  whether  the  mortgage  was  or  was 
not  valid.48 

The  obligation  of  the  purchaser  to  see  to  the  application  of  the 
purchase  money  in  certain  cases  of  defined  and  limited  trusts,  is, 
strictly  speaking,  perhaps  not  an  incumbrance  upon  the  estate,  but 
it  is  a  burden  upon  the  purchaser  which,  it  seems,  will  excuse  him 
from  performing  the  contract.  The  estate  is  obviously  of  less 
value  to  him  if  he  must  incur  the  expense  and  responsibility  of  see- 
ing that  the  purchase  money  is  reinvested  upon  the  same  trusts  as 
those  under  which  he  purchased.  It  has  even  been  held  that  he 
may  refuse  to  complete  the  contract  if  the  case  be  one  in  which  the 
duty  of  the  purchaser  to  see  to  the  application  of  the  purchase 
money  is  a  doubtful  question  dependent  upon  the  construction  of 
the  instrument  creating  the  trust.49 

it  become?  due,  and  a  contested  charge  which  will  involve  the  purchaser  in 
an  intricate  and  tedious  law  suit  of  uncertain  duration."  See,  also,  Christian 
v.  Cabell,  22  Gratt.  (Va.)  82;  Hendricks  v.  Gillespie,  25  Gratt.  (Va.)  181; 
Kenny  v.  Hoffman,  31  Gratt.  (Va.)  442;  Griffin  v.  Cunningham,  19  Gratt. 
(Va.)  571. 

"Nicol  v.  Carr,  35  Pa.  St.  381.  Titles  held  not  marketable.  Whether 
certain  building  restrictions  were  intended  as  a  condition  defeating  the 
estate,  or  merely  as  a  proviso  for  the  benefit  of  adjacent  lots:  Jeffries  v. 
Jeffries,  117  Mass.  184.  Whether  a  certain  $4,000,000  railroad  mortgage  was 
a  valid  lien  on  the  purchased  premises.  Nicol  v.  Carr,  35  Pa.  St.  381.  Title* 
held  marketable.  Whether  certain  lots,  in  a  subdivision  of  a  lot  originally 
charged  with  the  maintenance  of  a  fence  along  a  railroad,  were  burdened 
with  such  charge:  Walsh  v.  Barton,  24  Ohio  St.  28.  Whether  a  release  of  a 
certain  building  restriction  had  ever  been  executed:  Post  v.  Bernheimer,  31 
Run  (N.  Y.),  247.  Whether  a  vendor  is  bound  to  produce  a  release  of  legacies 
charged  on  the  purchased  premises,  the  legacies  having  been  in  fact  paid : 
Cassell  v.  Cooke,  8  S.  &  R.  (Pa.)  268,  292;  11  Am.  Dee.  610. 

49  St.  Mary's  Church  v.  Stockton,  8  N.  J.  Eq.  520,  531.  A  charter  under 
which  the  vendors  (certain  church  officials)  held  in  this  ease,  contained  a 
proviso  that  in  case  of  a  sale  of  the  premise*  granted,  lands  of  the  full 
value  of  those  sold  should  with  the  proceeds  of  the  sale  be  purchased  nn»l 
settled  for  the  uses  declared  in  the  charter.  The  court  observed:  "Without 
examining  particularly  the  doctrine  as  to  the  duty  of  purchasers  to  see  to 


784  MABKETABLE    TITLE    TO    EEAL    ESTATE. 

In  theory  a  pecuniary  incumbrance  which  is  less  in  amount 
than  the  purchase  money  is,  as  a  general  rule,  no  objection  to  the 
title,  because  the  purchase  money  may  be  applied  to  the  discharge 
of  the  incumbrance  and  the  incumbrancer  be  compelled  to  join  in 
the  conveyance  or  to  execute  a  release.50  But  it  is  obvious  that  cir- 
cumstances might  exist  which  would  make  the  incumbrance  a  seri- 
ous objection  to  specific  performance  by  the  purchaser.  The  prop- 
erty may  have  been  purchased  with  a  view  to  speedy  resale  as  a 
speculation,  and  difficulty  may  be  encountered  in  finding  a  person 
competent  to  release  the  incumbrance,  particularly  if  created  by  a 
remote  owner  of  the  property,  or  if  passed  by  assignment  to  a  third 
party.  In  such  a  case  it  is  apprehended  that  time  would  be  deemed 
of  the  essence  of  the  contract  and  the  purchaser  be  relieved  from 
the  bargain.  We  have  seen  that  in  a  case  in  which  the  facts  entitle 
the  purchaser  to  a  rescission  of  the  contract  on  the  ground  that  the 
estate  is  incumbered,  the  fact  that  the  incumbrance  is  less  in 
amount  than  the  unpaid  purchase  money  will  not  affect  the  right 
to  rescind  if  the  purchase  money  be  not  yet  due,  especially  if  the 
vendor  be  insolvent,  and  there  be  danger  that  the  incumbrance  will 
be  enforced,  and  that  the  purchaser  will  lose  the  property.51  The 
fact  that  the  unpaid  purchase  money  may  be  applied  to  the  dis- 
charge of  an  incumbrance  does  not  affect  the  purchaser's  right  to 
rescind,  if  the  vendor  fraudulently  concealed  the  existence  of  the 
incumbrance.62 

The  extreme  improbability  that  a  valid  and  subsisting  incum- 
brance upon  the  premises  will  ever  be  enforced  renders  the  title 
none  the  less  liable  to  objection.  When  once  it  is  ascertained  that 
the  incumbrance  exists,  specific  performance  by  the  purchaser  will 

the  application  of  the  purchase  money,  and  the  distinctions  which  prevail 
on  this  subject,  it  is  sufficient  to  say  that  this  proviso  might  be  a  serious, 
embarrassment  to  a  purchaser.  He  would  be  subjected  to  the  issue  of  the 
question  whether  the  purpose  to  which  the  money  arising  from  the  sale  is 
required  to  be  applied  be  of  a  definite  and  limited  or  of  a  general  and 
unlimited  nature.  If  the  first,  he  would,  as  it  seems  from  the  authorities,  be 
bound  to  see  that  the  purchase  money  was  applied  to  the  purpose  mentioned 
in  the  proviso.  Story's  Eq.  Jur.  §  1127."  Garnett  v.  Macon,  6  Call  (Va.), 
308. 

"Ante,  §§  245,  305. 

81  Ante,  ch.  24,  §  246.     Peak  v.  Gore,  94  Ky.  533. 

"Crawford  v.  Keebler,  5  Lea  (Tenn.),  547.    Peak  v.  Gore,  94  Ky.  533. 


OF   DOUBTFUL   TITLES.  785 

not  be  enforced  on  the  ground  that  it  is  doubtful  whether  the  in- 
cumbrance  will  ever  be  foreclosed.53 

"Seaman  v.  Hicks,  8  Paige  (N.  Y.),  665.  Hendricks  v.  Gillespie,  25  Grat. 
(Va.)  181,  200.  Butler  v.  O'Hear,  1  Des.  Eq.  (S.  C.)  382;  1  Am.  Dec.  671. 
If  any  person  has  an  interest  in  or  claim  upon  the  estate  which  he  may 
enforce,  a  purchaser  cannot  be  compelled  to  take  the  estate,  however  im- 
probable it  may  be  that  the  right  will  be  exercised.  1  Sugd.  Vend.  (8th 
Am.  ed. )  590.  Drew  v.  Corporation,  etc.,  9  Ves.  368,  where  the  vendor  was 
entitled  to  an  absolute  term  of  4,000  years  in  the  estate,  and  also  to  a 
mortgage  of  the  reversion,  which  had  been  forfeited  but  not  foreclosed.  In 
Brooklyn  Park  Com.  v.  Armstrong,  45  N.  Y.  234;  6  Am.  Rep.  70,  the  de- 
fendant purchased  certain  lands  which  the  plaintiffs,  a  park  commission,  held 
for  public  purposes;  but  were  authorized  to  sell  by  act  of  the  legislature, 
the  fund  so  realized  to  be  applied  to  the  redemption  of  bonds  issued  to  obtain 
funds  wherewith  to  acquire  such  lands,  which  bonds  were  made  a  lien  on 
the  lands  in  question.  One  of  the  objections  to  the  title  was  the  existence 
of  these  bonds  as  a  lien  on  the  land.  The  objection  was  deemed  sufficient, 
the  court  saying:  "It  is  true  that  the  danger  to  the  purchaser,  to  all  seem- 
ing, is  very  slight  and  very  remote,  that  the  premises  for  which  he  has  con- 
tracted will  ever  be  called  upon  to  contribute  to  the  payment  of  these  bonds. 
The  probabilities  are,  that  with  the  wealth  concentrated  within  the  corporate 
bounds  of  the  city  of  Brooklyn,  and  with  the  means  at  its  command,  it  will 
always  find  the  ordinary  means  of  raising  money  by  taxation  sufficient  for  the 
purpose  of  payment  of  interest,  and  the  method  of  a  new  loan  at  any  time 
available  to  pay  the  principal.  But  yet  there  is  the  possibility.  The  debt 
is  an  incumbrance  upon  the  land,  and  does  affect  that  for  which  the  appel- 
lant bargained.  This  is  a  legal  certainty.  However  strong  the  probability 
that  the  debt  will  never  be  exacted  from  the  land,  it  cannot  be  asserted  to 
be  more  than  a  probability.  While  it  exists  there  is,  as  matter  of  law,  and 
matter  of  fact,  the  possibility  that  the  creditor  may  enforce  his  lien.  And 
this  hampers  the  estate.  It  may  be  conceded  that  a  title  free  from  reason- 
able doubt  may  be  forced  upon  an  unwilling  purchaser.  Thus,  in  a  case 
in  which  it  appeared  that  there  was  in  a  prior  deed,  a  reservation  of  mines, 
specific  performance  was  decreed,  not  because  there  being  mines  it  was  not 
probable  that  the  right  reserved  would  ever  be  exercised,  but  because:  First. 
The  court  saw  upon  examination  the  probability  was  great  that  there  were  no 
mines  for  the  right  reserved  to  act  upon.  Second.  That  all  legal  right  to 
exercise  it  had  ceased.  But  this  is  a  doubt  whether  there  exists  in  law  or  in 
fact,  any  defect  in  the  title.  When  it  is  ascertained  that  there  is  an  existing 
defect  in  the  title,  the  purchaser  will  not  be  compelled  to  perform  on  the 
allegation  that  it  is  doubtful  whether  the  defect  will  ever  incommode  him." 
In  Rife  v.  Lybarger,  49  Ohio  St.  429;  31  N.  E.  Rep.  768,  the  only  cloud  upon 
the  title  was  an  uncanceled  mortgage  made  to  secure  certain  notes  which  had 
become  barred  by  statute.  The  mortgagee  was  dead,  his  estate  solvent,  and 
his  widow  and  heirs  had  quitclaimed  any  interest  which  they  might  have  to 
the  vendor.  The  purchaser  was  compelled  to  take  the  title.  The  court  by 
BRADBURY,  J.,  lucidly  said:  "If  the  title  is  such  that  it  ought  to  satisfy  a 
man  of  ordinary  prudence  it  is  sufficient.  In  the  case  under  consideration, 

50 


786  MARKETABLE    TITLE    TO    REAL    ESTATE. 

§  307.  Apparently  unsatisfied  incumbrances.  It  seems  that  in- 
cumbrances  upon  the  purchased  premises  which  do  not  appear  by 
the  record  to  have  been  satisfied  will  render  the  title  doubtful  or 
unmarketable,54  even  though  the  vendor  be  able  to  show  by  parol 
testimony  that  they  have  been  satisfied.55  They  constitute  a  cloud 
upon  the  title,  which  the  vendor  should  remove  before  calling  upon 
the  purchaser  to  complete  the  contract.  The  means  of  showing  the 
satisfaction  of  the  incumbrance  may  not  be  within  the  purchaser's 
reach,  if  an  attempt  to  enforce  the  incumbrance  should  be  made, 
or  if  the  existence  thereof  should  be  urged  as  an  objection  to  his 
title.  In  certain  of  the  States  there  are  statutory  provisions  for 
summary  proceedings  by  which  the  owner  of  an  estate  may  compel 
an  incumbrancer  to  enter  the  fact  of  satisfaction  of  the  incum- 
brance on  the  record.56  Where  the  vendor  is  in  possession  of  evi- 
dence which  would  entitle  him  to  such  an  entry  he  should  procure 
it  to  be  made.  If  he  have  not  such  evidence,  the  purchaser  should 
be  relieved  from  the  contract.  If,  however,  the  purchase  money 

the  title  was  perfect,  but  was  subject  to  a  mere  possibility  that  a  claim  might 
be  asserted  on  an  old  uncanceled  mortgage  against  which  full  indemnity  was 
tendered.  Under  such  circumstances  the  objection  presents  all  the  features 
of  an  excuse  for  the  non-performance  of  a  contract  no  longer  desirable.  It 
is  said  that  the  vendees  bought  the  land  with  a  view  to  its  subdivision  into 
town  lots  and  its  immediate  resale,  which  purpose  was  well  known  to  the 
vendor,  and  that  by  reason  of  this  incumbrance,  they  lost  a  sale  at  a  com 
aiderable  advance  on  the  price  they  were  to  pay.  This  may  be  true,  but  the 
vendor  is  no  more  to  be  affected  by  the  captious  objections  of  possible  pur- 
chasers of  the  vendees,  than  by  similar  objections  on  the  part  of  the  vendees 
themselves.  Whether  the  sale  should  be  of  the  entire  purchase  as  a  whole 
or  in  parcels  upon  its  subdivision  into  building  lots,  a  perfect  title  free 
from  any  reasonable  apprehension  of  danger  from  this  possible  lien,  could  be 
made  to  contemplating  purchasers. 

"Mahoney  v.  Allen,  42  N.  Y.  Supp.   11;   18  Misc.  134. 

65  Hoyt  v.  Tuxbury,  70  111.  331,  provided  the  objection  be  made  by  the 
purchaser  in  good  faith.  Hendricks  v.  Gillespie,  25  Gratt.  (Va.)  181,  semble. 
A  purchaser  at  a  judicial  sale  was  relieved  from  his  bid  where  an  entry  of 
satisfaction  of  a  prior  lien  on  the  premises  was  found  to  be  a  forgery. 
Charleston  v.  Blohme,  15  S.  C.  124;  40  Am.  Rep.  690.  In  the  following 
cases  there  are  decisions  or  dicta  that  the  purchaser  can  be  compelled  to 
complete  the  contract,  if  the  vendor  can  show  that  apparent  incumbrances 
on  the  premises  have  been  satisfied.  Fagan  v.  Davidson,  2  Duer  (N.  Y.), 
153;  Pangborn  v.  Miles,  10  Abb.  N.  C.  (N.  Y.)  42.  Espy  v.  Anderson,  14 
Pa.  St.  308. 

••As  in  Virginia,  Code  1887,  §  3564. 


OF   DOUBTFUL  TITLES.  787 

remains  unpaid  so  that  it  can  be  applied  to  any  incumbrance  upon 
the  premises,  or  if  the  vendor  can  show  that  he  is  able  to  satisfy 
the  incumbrance,  it  has  been  held  that  the  fact  that  the  incum- 
brance appears  unsatisfied  of  record  will  not  entitle  the  purchaser 
to  rescind.67  It  seems  that  if  a  suit  in  equity  by  the  vendor  be 
necessary  to  remove  a  cloud  upon  the  title  caused  by  an  apparent 
incumbrance  of  record,  the  purchaser  cannot  be  compelled  to  await 
the  issue  of  the  suit,58  and  may  refuse  to  complete  the  contract. 
But  if  the  vendor  can,  within  a  reasonable  time,  remove  the  objec- 
tion by  procuring  releases,  or  appropriate  entries  upon  the  records, 
showing  satisfaction  of  the  incumbrance,  no  reason  is  perceived 
why  he  should  not  be  permitted  to  do  so,  upon  the  general  prin- 
ciple that  the  vendor  may  perfect  the  title  wherever  time  is  not 
material. 

In  New  York  it  has  been  held  that  the  existence  of  a  mortgage 
on  the  premises,  although  more  than  thirty  years  old,  renders  the 
title  doubtful,  as  the  mortgagee  may  have  in  his  possession  a 
promise  to  pay,  or  other  facts  may  exist  which  would  prolong  the 
life  of  the  mortgage.69  In  Maryland,  in  a  case  in  which  the  right 
to  foreclose  had  been  barred  for  fifteen  years  over  the  statutory 
period  of  twenty  years,  and  in  which  there  had  been  no  recogni- 
tion of  the  mortgage  as  a  subsisting  lien  during  that  time,  it  was 
held  that  the  purchaser  could  not  refuse  to  take  the  title.80  The 
fact  that  an  incumbrance  upon  the  premises  appears  unsatisfied  of 
record,  will  not  justify  the  purchaser  in  his  refusal  to  complete  the 
contract,  when  the  incumbrance  is  of  such  long  standing  as  to 
raise  a  presumption  that  it  has  been  paid.61  Where  a  statute  pro- 

"Espy  V.  Anderson,  14  Pa.  St.  308. 

"Kenny  v.  Hoffman,  31  Va.  442.  Bartle  v.  Curtis,  68  Iowa,  202;  20  N.  W. 
Rep.  73. 

"Pangborn  v.  Miles,  10  Abb.  N.  Cas.  (N.  Y.)  42.  Austin  v.  Barnum,  52 
Minn.  136;  53  N.  W.  Rep.  1132. 

"Baldwin  v.  Trimble,  85  Md.  396;  36  L.  R.  A.  489;  37  Atl.  176. 

"Katz  v.  Kaiser,  154  N.  Y.  296;  48  N.  E.  Rep.  532.  Paget  v.  Melehior, 
58  N.  Y.  Supp.  913;  42  App.  Div.  76.  N.  Y.  Life  Ins.  Co.  v.  Lord,  40  C.  C.  A.. 
585;  100  Fed.  Rep.  17.  Belmont  v.  O'Brien,  2  Kern.  (N.  Y.)  304.  where 
there  were  two  mortgages  on  the  premises,  one  sixty-six  and  the  other  eighty- 
four  years  old.  Kip  v.  Hirsh,  103  N.  Y.  50.'):  9  N.  E.  Rep.  317;  Pnmrhorn  v. 
Miles,  10  Abb.  N.  C.  (N.  Y.)  42.  Forsyth  v.  Leslie,  77  N.  Y.  Supp.  826;  74 
App.  Div.  517;  Barber  v.  Gery,  64  N.  J.  Eq.  263;  53  Atl.  483.  Morgan  v. 


788  MARKETABLE    TITLE    TO    BEAT.    ESTATE. 

vided  that  a  trust  for  the  benefit  of  creditors  should  be  deemed 
discharged  after  the  expiration  of  twenty-five  years  from  the  time 
of  its  creation,  it  was  held  that  the  existence  of  the  trust  con- 
stituted no  objection  to  the  title  after  the  lapse  of  that  time.*1 
But  where  it  is  an  open  question  whether  under  the  law  of  the 
place,  a  mortgage  is  embraced  by  the  Statute  of  Limitations,  the 
purchaser  cannot  be  required  to  take  the  title.68 

In  regard  to  releases,  or  marginal  entries  upon  the  public  rec- 
ords, showing  the  satisfaction  of  incumbrances,  it  is  to  be  observed 
that  an  authority  to  make  such  entry,  or  to  execute  such  release, 
must  appear  from  the  records,  and  if  the  abstract  fails  to  show  such 
authority,  the  title  will  be  held  unmarketable.64  Thus,  if  the  release 
is  by  an  attorney  in  fact,  assignee  or  personal  representative,  and 
the  power  of  attorney,  assignment  or  qualification  of  the  personal 
representative  has  been  or  may  be,  made  a  matter  of  public  record, 
the  abstract  of  title  must  show  such  power,  assignment  or  qualifica- 
tion as  the  case  may  be,  or  the  purchaser  will  be  justified  in  reject- 
ing the  title,  if  the  contract  provides  that  the  abstract  shall  show  a 
good  title  of  record.65  In  a  case  in  which  a  county  auditor  released 
a  mortgage  upon  school  lands,  and  there  was  nothing  to  show 
actual  satisfaction  of  the  mortgage,  it  was  held  that  the  purchaser 
might  reject  a  conveyance,  the  release  being  prima  facie  unauthor- 
ized and  void.6* 

Scott,  26  Pa.  St.  51,  where  the  mortgage  was  fifty  years  old  and  was  made 
to  secure  a  life  annuity  to  a  person  many  years  dead  at  the  time  of  the  sale. 
In  Hayes  v.  Nourse,  8  N.  Y.  State  Rep.  397,  a  lis  pendens  fifty  years  old  was 
held  to  be  sufficient  objection  to  the  title.  Satisfaction  of  a  claim  to  the 
premises  cannot  be  presumed,  so  long  as  a  suit  asserting  the  claim  is  pending. 

«  Green  v.  Hernz,  33  N.  Y.  Supp.  843.  Kip  v.  Hirsh,  103  N.  Y.  565;  9  N. 
E.  Rep.  317,  where  held  also  that  such  statute  was  retrospective  in  its  op- 
eration, and  applied  to  trusts  in  existence  before  the  passage  of  the  act. 
Disapproving  McCahill  v.  Hamilton,  20  Hun  (X.  Y.),  388.  Where  a  vendor 
had  been  for  fifteen  years  in  possession  under  an  assignment  which  was  on  its 
face  void  as  to  creditors,  but  no  creditors  had  ever  sought  to  impeach  it, 
and  thirty-three  years  had  elapsed  since  the  assignment  was  made,  the  title 
of  the  vendor  was  held  marketable.  Morrison  v.  Brand,  5  Daly  (N.  Y.), 
40. 

•  Godfrey  v.  Rosenthal,  17  S.  Dak.  452;  97  N.  W.  365. 

•«  Warvelle  Abst.  344. 

"  O'Neill  v.  Douthett,  40  Kans.  689 ;  20  Pac.  Rep.  493,  reversing  3»  Kana. 
316;  Durham  v.  Hadley,  47  Kans.  73;  27  Pac.  Rep.  105. 

"fonley  v.  Dibber,  91  Ind.  413. 


OF   DOUBTFUL   TITLES.  789 

§  307-a.  Encroachments  and  deficiencies.  Encroachments.  A 
fruitful  source  of  objections  to  the  title  to  city  property 
is  that  the  buildings  or  structures  on  the  property  encroach  upon 
the  lands  of  adjoining  proprietors.  As  a  general  rule  in  such 
cases  the  purchaser  is  entitled  to  a  rescission  of  the  contract  and  a 
return  of  his  deposit;,  on  the  ground  that  the  title  is  unmarketable.'7 
Thus,  he  cannot  be  compelled  to  accept  title  to  a  city  lot  and  build- 
ing thereon  if  an  exterior  wall  of  the  building  rests  entirely  on  the 
lot  of  an  adjoining  proprietor,  and  belongs  exclusively  to  such 
proprietor,  by  whose  permission,  or  with  whose  acquiesence,  the 
beams  of  the  adjoining  building  are  inserted  in  such  wall,  no  legal 
right  to  the  use  of  the  wall  being  shown.68  But  insignificant  and 
immaterial  encroachments  upon  adjoining  property  will  not  en- 
title the  purchaser  to  rescind.69  No  rule  can  be  laid  down  that  one 
or  two  inches  of  encroachment  wrill  justify  a  rescission  of  the 
contract.  Each  case  must  be  determined  upon  its  peculiar  facts. 
The  evidence  must  establish  a  reasonable  certainty  that  injury  to 
the  purchaser  will  folloNy ;  that  he  will  be  prevented  from  using 
the  buildings  in  the  condition  which  they  were  in  at  the  time  of 
the  purchase.70 

The  encroachment  will  not  entitle  the  purchaser  to  relief  where 
it  has  existed  for  such  length  of  time  and  under  such  circumstances 
as  to  bar  any  claim  by  the  owner  of  the  premises  encroached  upon.71 

"McPherson  v.  Schade,  149  N.  Y.  16;  43  N.  E.  527.  Heller  v.  Cohen. 
154  N.  Y.  299;  48  N.  E.  527.  Snow  v.  Monk,  80  N.  Y.  Supp.  719;  81  App. 
Div.  206.  Keim  v.  Sachs,  92  N.  Y.  Supp.  107 ;  102  App.  Div.  44.  Bergmann 
v.  Klein,  89  N.  Y.  Supp.  624;  97  App.  Div.  15.  The  extent  of  the  injury 
to  the  adjoining  premises  is  immaterial.  Snow  v.  Monk,  80  N.  Y.  Supp.  719; 
81  App.  Div.  206. 

"Spero  v.  Shulz,  43  N.  Y.  Supp.  1016;  14  App.  Div.  423.  Neher  v.  Brunck- 
man,  55  N.  Y.  Supp.  107;  36  App.  Div.  625. 

*  Merges  v.  Ringler,  54  N.  Y.  Supp.  280;  34  App.  Div.  415;  McDonald  v. 
Buch.  60  N.  Y.  Supp.  557;  29  Misc.  96.  The  encroachment  is  immaterial  if 
the  building  purchased  is  old,  dilapidated,  and  practically  worthless.  Weil 
v.  Radley.  52  N.  Y.  Supp.  398.  The  encroachment  of  show  windows  nevcntwn 
inches  on  the  street  is  no  objection  to  the  title.  Keim  v.  Sachs.  92  N.  Y. 
Supp.  107:  102  App.  Div.  44. 

"Merges  v.  Ringler,  54  N.  Y.  Supp.  280;  34  App.  Div.  415. 

71  Weil  v.  Radley,  52  X.  Y.  Supp.  398.  Harrison  v.  Platt,  :>4  X.  Y.  Stip;». 
842;  35  App.  Div.  533.  Where  a  house  on  the  lot  had  stood  f c  r  thirty  years 
without  objection  to  an  encroachment  of  two  or  throo  inches  on  nn  n-ljoining 
lot,  it  was  held  that  the  purchaser  could  not  iefu*«>  tl:c  title.  Katz  v. 


790  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

But  the  burden  will  be  upon  the  vendor  to  show  that  his  title  has 
been  ripened  by  adverse  possession  against  all  possible  claimants, 
including  persons  under  disabilities,  if  any.72  In  Xew  York  it  is 
provided  by  statute  that  suit  to  recover  land  encroached  upon  by 
the  wall  of  a  building  must  be  brought  within  a  year  after  the 
erection  of  the  building.73  In  cases  to  which  that  act  applies,  the 
purchaser  cannot  object  to  the  title  where  no  such  suit  has  been 
brought  within  the  year  prescribed.74  There  is  also  a  statute  in 
the  same  State  which  requires  a  city  to  begin  proceedings  within 
a  specified  time  for  the  removal  or  abatement  of  structures  en- 
croaching upon  a  street.  Slight  encroachments  upon  a  street  are 
no  objection  to  the  title,  where  the  city  has  brought  no  such  suit 
within  the  specified  time.75 

§  307-b.  Deficiencies  in  Quantity.  The  objection  is  fre- 
quently made  that  the  vendor  is  not  able  to  convey  as  much  land 
as  the  purchaser  is  entitled  to  under  the  contract.  The  deficiency 
may  result  either  from  an  incorrect  estimate  of  the  quantity  of 
land  within  certain  bounds,  or  it  may  result  from  the  want  of  title 
of  the  vendor  to  some  portion  of  the  land  included  within  those 

Kaiser,  41  N.  Y.  Supp.  776;  10  App.  Div.  137.  The  mere  fact  that  an 
encroachment  has  continued  for  twenty  years  does  not  establish  a  right  by  ad- 
verse possession  to  the  space  encroached  upon.  Miner  v.  Hilton,  44  N.  Y. 
Supp.  155;  15  App.  Div.  55. 

71  Stevenson  v.  Fox,  57  N.  Y.  Supp.  1094 ;  49  App.  Div.  354. 

w  Code  Civ.  Proc.  N.  Y.  §  1499. 

74  Volz  v.  Steiner,  73  N.  Y.  Supp.  1006 ;  67  App.  Div.  504.  This  provision 
applies  only  where  the  wall  abuts  a  wall  on  the  adjoining  lot;  it  does  not 
apply  where  the  encroachment  is  upon  a  lot  on  which  there  is  no  abutting 
wall.  Bergmann  v.  Klein,  89  N.  Y.  Supp.  624;  97  App.  Div.  15.  The  limi- 
tation does  not  begin  to  run  against  those  having  a  remainder  in  the  lot 
encroached  upon  until  they  have  entered.  Hence  the  statute  does  not  cure 
the  objection  where  the  premises  encroached  upon  are  occupied  by  a  life- 
tenant  with  remainder  over.  Snow  v.  Monk,  80  N.  Y.  Supp.  719;  81  App. 
Div.  206. 

"Merges  v.  Ringler,  54  N.  Y.  Supp.  280;  34  App.  Div.  415.  Harrison  v. 
Platt,  54  N.  Y.  Supp.  842;  35  App.  Div.  533.  The  fact  that  the  stoop  of  a 
building  projects  several  feet  beyond  the  lot  line  into"  the  street,  is  no  ob- 
jection to  the  title.  Broadbelt  v.  Loew,  162  N.  Y.  642;  57  N.  E.  Rep.  1105. 
Levy  v.  Hill,  75  N.  Y.  Supp.  19;  70  App.  Div.  95.  Slight  encroachments 
beyond  the  street  line  are  no  objection  to  the  title  where  they  have  existed 
for  a  number  of  years  without  objection  on  the  part  of  the  city  authorities. 
Webster  v.  Kings  Co.  Tr.  Co..  145  N.  Y.  275;  39  N.  E.  Rep.  964. 


OF    DOUBTFUL   TITLES.  791 

bounds.  If  the  deficiency  be  so  great  or  so  important,  that  the 
purchaser  cannot  be  required  to  complete  the  contract  with  com- 
pensation, or  abatement  of  the  purchase  money,  for  the  defect,  the 
title  is  said  to  be  not  marketable,  though  in  a  technical  sense,  that 
term  is  properly  applicable  only  to  those  cases  in  which  a  doubt 
arises  as  to  the  sufficiency  of  the  vendor's  title  to  some  portion  of 
the  premises  embraced  in  the  contract,  and  not  to  cases  in  which 
there  is  a  clear  want  of  title  to  such  portion.76 

A  title  will  not  be  rendered  unmarketable  by  a  deficiency  in  area 
when  the  contract  was  made  with  reference  to  fixed  monuments 
bounding  the  land.77  But  the  rule  that  monuments  control  metes 
arid  bounds,  courses  and  distances,  does  not  apply  when  there  is  no 
certain  boundary  in  the  description  which  can  make  the  courses 
and  distances  yield  to  fixed  monuments.78 

"Post,  Ch.  33.    Albro  v.  Gowland,  90  N.  Y.  Supp.  796;  98  App.  Div.  474. 

"Pope  v.  Thrall,  68  N.  Y.  Supp.  137;  33  Misc.  44.  Scannel  v.  Amer.  Soda 
Fountain  Co.,  161  Mo.  606;  61  S.  W.  Rep.  889.  The  purchaser  of  a  citj 
lot  cannot  object  that  the  house  on  the  lot  encroaches  several  inches  on  an 
adjoining  lot,  where  both  lots  were  formerly  owned  by  the  same  person,  and 
the  vendor  holds  under  a  conveyance  from  that  person.  In  such  case  the  loca- 
tion of  the  house  is  conclusive  on  subsequent  grantees  of  the  lot  encroached 
upon  as  to  the  extent  of  the  lot,  under  the  rule  that  natural  or  artificial  bound- 
aries plainly  referred  to,  must  control  measurements  and  distances  with 
which  they  do  not  agree.  Katz  v.  Kaiser,  41  N.  Y.  Supp.  776;  10  App. 
Div.  137. 

"Fuhr  v.  Cronin,  81  N.  Y.  Supp.  536;  82  App.  Div.  210 


CHAPTER  XXXII. 

OF  THE  RIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE. 

BEFORE   THE  TIME  FIXED  FOB  COMPLETING  THE  CONTRACT. 

§   308. 

AFTER  THE  TIME  FIXED   FOR  COMPLETING  THE   CONTRACT. 
§  309. 
Exceptions:  (1)  Where  time  is  material.     §  310. 

(2)  Where  the  covenants  are  mutual  and  dependent.      §  311. 

(3)  Waiver  of  the  right.     §  312. 

(4)  Loss  and  injury  to  the  purchaser.     §  313. 

(5)  Fraud  of  the  vendor.     §  314. 

(6)  Want  of  colorable  title.     §   315. 

(7)  Laches  of  the  vendor.     §  316. 

(8)  Effect  of  special  agreements.     §  317. 

(9)  Effect  of  notice  and  request  to  perfect  the  title.     §  318. 

IN  WHAT  PROCEEDINGS  THE  RIGHT  MAY  BE  ASSERTED.    §  319. 
REFERENCE  OF  THE  TITLE  TO  MASTER  IN  CHANCERY. 

When  directed.     §  320. 

When  refused.     §  321. 

At  what  stage  of  the  proceedings  reference  may  be  made.     §  322. 

Procedure.     Costs.     §  323. 

INTEREST  ON  THE  PURCHASE  MONEY  WHILE  TITLE  IS  BEING 
PERFECTED.     §  324. 

§  308.  BEFORE  THE  TIME  FIXED  FOR  COMPLETING  THE  CON- 
TRACT. The  vendor  may  of  right  perfect  his  title  at  any  time 
before  the  period  fixed  for  the  completion  of  the  contract,  and  the 
fact  that  his  title  was  incomplete  at  the  time  the  contract  was  made, 
is  immaterial,  provided  the  matters  necesary  to  make  the  title  good 
can  be  accomplished  before  the  time  specified  for  making  the  con- 
veyance.1 The  vendor  is  not  necessarily  guilty  of  fraud  in  repre- 

Jl  Sugd.  Vend.  (8th  Am.  ed.)  396;  1  Chitty  Cont.  (llth  ed.)  431;  Will. 
Eq.  Jur.  290.  Stowell  v.  Robinson,  3  Bing.  (N.  C.)  928;  In  re  Bryant,  44  Ch. 
Div.  218.  Gray  v.  Smith,  76  Fed.  525.  Harris  v.  Carter,  3  Stew.  (Ala.)  236; 
Clemens  v.  Loggins,  2  Ala.  518.  Dresel  v.  Jordan,  104  Mass.  407.  Gibson  v. 
Newman,  1  How.  (Miss.)  341.  Goss  v.  Singleton,  2  Head  (Tenn.),  67.  An- 
drew v.  Babcock,  (Conn.)  26  Atl.  Rep.  715.  Dennis  v.  Strasburger,  89  Cal. 
583;  25  Pac.  Rep.  1070.  Hundley  v.  Tibbetts,  (Ky.)  16  S.  W.  Rep.  131. 
More  v.  Smedburgh,  8  Paige  Ch.  (N.  Y.)  600;  Friedman  v.  Dewees,  33  N.  Y. 
Super.  Ct.  450.  Monsen  v.  Stevens,  56  111.  335.  Rowersock  v.  Beers,  82  111. 


OF  THE  RIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE.       793 

senting  that  his  title  is  good  and  indefeasible,  if  he  be  able  to  make 
it  so  before  the  time  fixed  for  completing  the  contract.2  Generally 
speaking  the  vendor  will  not  be  permitted  to  perfect  the  title  where 
at  the  time  of  the  contract,  he  has  no  colorable  title  to  the  premises 
and  seeks  to  compel  the  vendee  to  await  his  efforts  to  get  in  the 
title  after  the  time  when  the  contract  should  have  been  performed. 
The  law  does  not  encourage  speculation  in  the  property  of  stran- 
gers. But  the  purchaser  cannot  object  to  specific  performance 
on  the  ground  that  the  vendor  had  no  semblance  of  title  at  the  time 
of  the  contract  if  he  has  acquired  or  can  acquire  it  before  the  time 
fixed  for  the  completion  of  the  contract.  In  such  a  case  the  pur- 
chaser is  put  to  no  delay  or  inconvenience,  and  there  is  nothing  of 
which  he  can  complain.8  The  vendor  has,  of  course,  until  the  time 
fixed  for  completing  the  contract  in  which  to  remove  incumbrances. 
The  delivery  of  the  deed  and  the  payment  of  the  purchase  money 
are  simultaneous  acts.  The  vendor  is  not  bound  to  raise  money  and 
pay  the  incumbrances  in  advance.  If  he  produces  the  holder  of 

App.  396.  Elder  v.  Chapman,  70  111.  App.  288;  Armstrong  v.  Breen,  101 
Iowa,  9;  69  N.  W.  Rep.  1125;  Maryland  Const.  Co.  v.  Kuper,  90  Md.  529; 
45  Atl.  197.  Moot  v.  Business  Men's  Asso.,  157  N.  Y.  201 ;  52  N.  E.  Rep.  1. 
Mincey  v.  Foster,  125  N.  C.  541;  34  S.  E.  Rep.  644.  Garber  v.  Sutton,  96 
Va.  469;  31  S.  E.  Rep.  894.  Jones  v.  Taylor,  7  Tex.  240;  56  Am.  Dec.  48; 
Tison  v.  Smith,  8  Tex.  147.  Here  the  vendor  had  no  title  to  a  part  of  the 
land  sold,  and  had  to  buy  it  from  a  third  party  in  order  to  fulfill  the  contract 
on  his  part,  but  the  purchaser  was  aware  of  all  the  facts  when  he  bought. 
In  Cook  v.  Bean,  17  Ind.  504,  it  was  held  that  the  vendor's  right  to  time 
in  which  to  perfect  the  title,  obtains  only  in  cases  where  some  secret  defect 
is  discovered  in  the  title,  and  does  not  operate  to  excuse  the  vendor  from 
doing  all  in  his  power  to  fulfill  the  contract  at  the  appointed  time.  This 
case  must  not  be  given  too  broad  an  interpretation,  else  it  will  conflict  with 
the  rule  that  one  purchasing  with  knowledge  that  time  will  be  required  to 
perfect  the  title,  is  held  to  have  waived  his  right  to  demand  a  strict  per- 
formance at  the  time  fixed  for  completing  the  contract.  In  Upton  v.  Maurice 
(Tex.  Civ.  App.),  34  S.  W.  Rep.  642,  it  was  held  that  where  time  was  not 
of  the  essence  of  the  contract,  and  the  vendee  has  made  no  tender  of  per- 
formance on  his  part  and  no  demand  of  performance  on  the  part  of  the 
vendor,  the  right  of  the  latter  to  perfect  the  title  remains  until  a  right  of 
action  on  the  contract  is  barred  by  the  statute  of  limitations. 

*  Cases  cited  in  last  note. 

»Po«t,  this  chapter,  §  315.  Webb  v.  Stephens,  (Wash.)  39  Pac.  Rep.  952. 
The  fact  that  a  guardian  had  no  authority  to  sell  at  the  time  of  sale,  does 
not  invalidate  the  contract,  if  he  acquires  authority  before  the  time  fixed  for 
completing  the  contract.  Morris  v.  Goodwin,  (Ind.  App.)  27  N.  E.  Rep.  985. 


794  MARKETABLE    TITLE    TO    KEAL    ESTATE. 

the  lien  ready  to  satisfy  it  on  payment  he  can  rely  on  the  purchase 
money  as  the  fund  for  such  payment.4  Therefore,  the  foreclosure 
of  a  mortgage  upon  the  premises  before  a  final  payment  of  the  pur- 
chase money  becomes  due,  is  no  ground  upon  which  to  rescind  the 
contract,  unless  the  agreement  expressly  required  the  vendor  to 
remove  incumbrances  before  all  the  purchase  money  should  be  paid, 
or  unless  there  should  be  circumstances  in  the  case  that  would  make 
inequitable  a  compulsory  performance  by  the  vendee.5  If  by  the 
contract  it  is  expressly  provided  that  the  purchaser  shall  receive  a 
title  clear  of  all  incumbrances,  the  vendor  must  discharge  these 
before  the  time  fixed  for  completing  the  contract,  and  the  purchaser 
will  not  be  in  default  in  failing  to  tender  the  purchase  money  if  the 
vendor  does  not  remove  the  incumbrance  before  that  time.6  The 
purchaser  should  make  his  objections  to  the  title  in  time  to  enable 
the  vendor  to  remove  them.7  And  in  any  suit  in  which  he  seeks  to 
rescind  the  contract  he  should  specify  the  defect  of  title  of  which 
he  complains  in  order  to  give  the  vendor  an  opportunity  to  remove 
it,  and  time  should  be  allowed  the  vendor  to  bring  proper  parties 
before  the  court,  where  the  title  can  be  perfected  by  having  them 
present.8  If  a  time  be  specified  in  which  the  vendor  may  perfect 
the  title  if  defective,  the  purchaser  can  maintain  no  action  to 
recover  back  the  deposit  before  that  time  has  expired.9  But  where 
the  vendor  refused  to  accept  a  tender  of  the  balance  of  the  purchase 
money  on  the  ground  that  he  had  no  title  and  could  not  perform 
the  contract,  it  was  held  that  he  could  not,  when  sued  for  the 
the  deposit,  be  heard  to  say  that  the  time  fixed  for  the  completion 
of  the  contract  has  not  yet  expired.10 

Generally,  in  the  purchase  of  an  estate  and  the  appointment  of  a 
particular  day  for  the  completion  of  the  title,  the  principal  object 

4  Webster  v.  Kings  Co.  Trust  Co.,  80  Hun  (N.  Y.),  420;  30  N.  Y.  Supp.  357. 
Gibson  v.  Newman,  1  How.  (  Miss.)  346.  Duluth  Land  Co.  v.  Klovdahl,  55 
Minn.  341;  56  N.  W.  Rep.  1119.  Anderson  v.  Creston  Land  Co.,  96  Va.  257; 
31  S.  E.  Rep.  82. 

BPate  v.  McConnell,  (Ala.)   18  So.  Rep.  98.    Post,  this  chapter,  §  317. 

•Morange  v.  Morris,  34  Barb.    (N.  Y.)    311. 

'More  v.  Smedburg,  8  Paige  (N.  Y.),  600.  Easton  v.  Montgomery,  90  Cal. 
307;  27  Pac.  Rep.  280. 

8Hogan  v.  MeMurtry,  5  T.  B.  Mon.  (Ky.)   181. 

"Dennis  v.  Strasburger,  89  Cal.  583;  26  Pac.  Rep.  1070. 

"  Seiberling  v.  Lewis,  93  111.  App.  549. 


OP  THE  BIGHT  OF  THE  VENDOR  TO   PERFECT  THE  TITLE.       795 

is  the  sale  of  the  estate  for  a  given  sum,  and  the  naming  of  the  day 
is  either  merely  formal,  or  for  the  convenience  of  the  parties  in 
the  payment  of  the  purchase  money  on  the  one  side  or  the  execution 
of  a  conveyance  on  the  other.  "  The  stipulation  means  in  truth 
that  the  purchase  shall  be  completed  within  a  reasonable  time,  re- 
gard being  had  to  all  the  circumstances  of  the  case  and  the  nature 
of  the  title  to  be  made."  u  In  a  case  in  which  the  contract  provided 
than  ten  days  should  be  allowed  for  examination  of  the  title,  and 
that  if  the  title  proved  unsatisfactory  the  deposit  should  be  re- 
turned, it  was  held  that  the  purchaser  should  state  his  objections  to 
the  title,  if  not  approved,  and  that  the  vendor  would  be  entitled  to 
a  reasonable  time  thereafter  in  which  to  perfect  the  title,  and  that 
the  purchaser  could  not  rescind  the  contract  until  he  had  given  such 
notice  of  his  objections  and  furnished  the  vendor  an  opportunity 
to  remove  them.12  If  no  time  for  the  completion  of  the  contract 
be  fixed,  the  vendor  may  perfect  the  title  at  any  time  before  it  is 
demanded  by  the  purchaser.13  And  after  demand,  he  must  be  al- 
lowed a  reasonable  time  in  which  to  make  out  the  title.14  Where 
the  contract  is  silent  as  to  the  time  when  the  vendor  is  to  convey, 
the  legal  implication  is  that  the  conveyance  is  to  be  made  and  de- 
livered within  a  reasonable  time  for  that  purpose,  after  the  vendee 
has  performed  on  his  part;  and  if  the  vendor  perfects  his  title 
within  such  time,  he  may  enforce  specific  performance  of  the 
contract.16  In  a  suit  by  the  purchaser  for  specific  performance, 
in  which  a  rescission  of  the  contract  is  not  asked  as  alternative 
relief,  it  is  error  in  the  court  to  rescind  the  contract  without  giving 

11  Language  of  ALDEBSON,  B.,  in  Hipwell  v.  Knight,  1  Yo.  &  Coll.  415. 

"Anderson  v.  Strasburger,  92  Cal.  38;  27  Pac.  Rep.  1095,  (citing  Englander 
v.  Rogers,  41  Cal.  420;  Dennis  v.  Strasburger,  89  Cal.  583,  and  Easton  T. 
Montgomery,  supra).  Arnett  v.  Smith,  11  N.  Dak.  55;  88  N.  W.  Rep.  1037. 
Edmison  v.  Zaborowski,  9  S.  Dak.  40;  68  N.  VV.  Rep.  288. 

"Evans  v.  Boiling,  5  Ala.  550.  Morgan  v.  Scott,  26  Pa.  St.  51.  Gibson  Y. 
Brown,  214  111.  330;  73  N.  E.  Rep.  578. 

14Sugd.  Vend.  (8th  Am.  ed.)  397.  Baker  v.  Shy,  9  Heisk.  (Tenn.)  85. 
Tapp  v.  Nock,  89  Ky.  414.  In  this  case  the  sale  was  made  March  twenty- 
eighth  and  the  title  was  perfected  and  a  deed  tendered  on  the  following  May 
twenty-eighth.  The  purchaser  was  required  to  accept  the  deed,  though  the 
property  had  been  bought  for  speculative  purposes  during  a  time  of  inflated 
prices  and  had  declined  in  value  before  the  title  was  perfected. 

"Williamson  v.  Neeves,  94  VVis.  656;  69  N.  W.  806. 


796  MARKETABLE    TITLE    TO    REAL    ESTATE. 

the  vendor  a  reasonable  time  in  which  to  perfect  the  title.16  If  the 
parties  arrange  for  the  removal  of  an  incumbrance  prior  to  per- 
formance, without  naming  a  specific  day,  the  removal  within  a 
reasonable  time  is  a  sufficient  performance.17  We  have  already 
seen  under  what  circumstances  the  purchaser  will  be  deemed  to 
have  waived  his  right  to  require  a  strict  performance  by  the  vendor 
at  the  time  fixed  for  completing  the  contract.18 
'  In  actions  by  the  vendor  to  recover  the  purchase  money  before 
the  time  when  he  is  required  by  the  contract  to  pass  the  title,  the 
purchaser  cannot  defend  on  the  ground  that  the  title  is  defective, 
since  the  vendor  may  acquire  the  title  before  the  specified  time.  It 
is  sufficient  if  he  have  a  good  title  at  the  time  when  the  conveyance 
is  to  be  made,  and  the  objection  that  he  had  none  at  the  time  the 
contract  was  made  will  be  unavailing.19  It  is  true  that  equity  will 
not  decree  specific  performance  by  the  purchaser  when  it  appears 
that  the  vendor,  having  no  title  nor  color  of  title,  undertakes  to  sell 
the  property  of  a  third  person,  speculating  in  his  chances  of  ac- 
quiring the  title  from  that  person.20  But  equity  will  not  always 
rescind  a  contract  which  it  refuses  to  enforce,  the  parties  being  left 
to  their  remedies  at  law.21  And,  at  law,  in  the  case  under  con- 
sideration, the  purchaser,  having  agreed  to  pay  the  purchase  money 
before  the  time  when  he  is  entitled  to  a  conveyance,  must  abide  the 
consequences  of  his  contract.  Therefore,  it  has  been  held  that  if, 
by  the  contract,  the  purchase  money  is  to  be  paid  in  installments, 
and  the  conveyance  is  not  to  be  made  until  the  last  installment  is 
paid,  the  purchaser,  cannot  refuse  to  pay  the  purchase  money  on 
the  ground  that  the  title  is  defective,22  unless  it  appears  that,  be- 
cause of  the  vendor's  insolvency,  or  for  some  other  reason,  the  pur- 
chaser's remedy  by  action  for  breach  of  the  contract  will  prove  un- 

"  Russell  v.  Shively,  3  Bush   (Ky.),  162. 

"Cramer  v.  Mooney,  59  N.  J.  Eq.  164;   44  All.  625. 

"Ante,  ch.  8. 

"Ante,  §  308.  Harrington  v.  Higgins,  17  Wend.  (N.  Y.)  376.  Wright  v. 
Blackley,  3  Ind.  101 ;  Wiley  v.  Howard,  15  Ind.  169.  Taylor  v.  Johnson,  19 
Tex.  351. 

"Post,  §  315. 

"Ante,  §  283. 

28  Ante  Harrington  v.  Higgins  and  other  cases  cited,  supra.  Diggle  T. 
Boulden,  48  Wis.  477. 


OF  THE  EIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE.       797 

availing.23  It  is  scarcely  necessary  to  say  that,  if  the  covenants  to 
pay  the  purchase  money  and  to  convey  an  indefeasible  title  are 
mutual  and  dependent,  the  vendor  will  not  be  allowed  time  in  which 
to  perfect  the  title,  if  time  be  of  the  essence  of  the  contract.*4 
Neither  will  he  be  allowed  that  privilege  if  the  case  be  such  that  the 
vendee  cannot  compel  specific  performance  after  the  title  has  been 
perfected.  There  must  be  mutuality  of  obligation  between  the 
parties.25 

Wherever  the  privilege  of  perfecting  the  title  is  accorded  to  the 
vendor  he  must,  as  a  general  rule,  pay  the  costs  of  the  suit ;  the  suit 
being  made  necessary  by  his  default.26 

While  the  vendor,  as  a  general  rule,  will  be  allowed  time  in 
which  to  perfect*  the  title,  extraordinary  relief  by  way  of  injunc- 
tion or  the  writ  of  ne  exeat  will  not  be  granted  at  the  same  time." 
The  vendor  must  show  a  present  ability  to  perform  the  contract  on 
his  part.  Thus,  where  the  contract  was  for  an  exchange  of  lands, 
and  the  complainant  prayed  an  injunction  to  restrain  the  defendant 
from  receiving  the  rents  and  profits  of  his  own  property  pending 
the  complainant's  efforts  to  remove  an  incumbrance  from  the  prem- 
ises he  was  to  give  in  exchange,  the  court  reversed  an  order  of  the 
court  below  granting  the  injunction.28 

"Mclndoe  v.  Morman,  26  Wis.  588;  7  Am.  Rep.  96.  Durham  v.  Hadley, 
(Kans.)  27  Pac.  Rep.  105.  Peak  v.  Gore,  94  Ky.  533. 

"Post,  §  311.     Harrington  v.  Higgins,   17  Wend.    (N.  Y.)   376;  Carpenter 

v.  Brown,  6  Barb.   (N.  Y.)   147,  semble;  Holmes  v.  Homles,  12  Barb.  (N.  Y.) 

137.    After  a  purchaser  has  exercised  his  right  to  rescind  for  failure  of  title, 

under  Civil   Code  of  California,  section   1689,  subdivision  4,   which  provides 

that  a  party  to  a  contract  may  rescind  the  same  if  the  consideration,  before 

it  is  rendered  to  him,  fails  in  a  material  respect  from  any  cause,  the  vendor 

cannot  revive  the  contract  by  tendering  a  conveyance  of  a  good  and  sufficient 

title.     Anderson  v.  Strasburger,  92  Cal.  38;  27  Pac.  Rep.  1095. 

"White  v.  Needham,  21  Ky.  Law  R.  1051;  54  S.  W.  Rep.  9. 

"Fishback  v.  Williams,  3  Bibb  (Ky.),  342;  Jarboe  v.  McAtee,  7  B.  Mon. 
(Ky.)  279.  Lesesne  v.  Witte,  5  S.  C.  462;  Bates  v.  Lyons,  7  S.  C.  85;  Lyles 
v.  Kirkpatrick,  9  S.  C.  265.  Where  the  purchaser  has  agreed  to  share  the 
expenses  of  perfecting  the  title  he  must  pay  his  portion  of  such  expenses  as 
they  occur,  or  he  cannot  enforce,  the  contract.  Hutcheson  v.  McNutt,  1 
Ohio,  16. 

"Brown  v.  Huff,  5  Paige  (N.  Y.),  241.  Morris  v.  McNeill,  2  RUM.  604. 
See,  also,  2  Dicken's  R.  497,  note. 

"Baldwin  v.  Salter,  8  Paige   (N.  Y.),  472. 


798  MARKETABLE    TITLE    TO    BEAL    ESTATE. 

The  purchaser  will  not  be  allowed  to  forestall  the  vendor  by 
acquiring  an  outstanding  right  and  setting  it  up  adversely  to  the 
latter.29  Specific  performance  will  be  decreed  against  the  pur- 
chaser, allowing  him  the  amount  paid  for  the  interest.  The  same 
rule  is  enforced  at  law.30 

The  vendor  may  perfect  his  title  if  he  chooses,  but  in  the  ab- 
sence of  any  agreement  or  covenant  to  that  effect,  there  is  no  obliga- 
tion upon  him  so  to  do,  and  the  purchaser  cannot  recover  damages 
against  him  for  refusing  to  perfect  the  title.31 

§  309.  AFTER  THE  TIME  FIXED  FOB  COMPLETING  THE  CON- 
TRACT. If  the  time  for  completing  the  contract  has  elapsed,  the 
vendor  may  nevertheless  insist  upon  his  right  to  perfect  the  title, 
except  in  certain  cases  hereafter  to  be  mentioned.32  As  a  general 
rule  it  is  sufficient  if  he  be  able  to  convoy  a  good  title  at  any  time 
before  decree  in  any  proceeding  in  which  it  is  sought  to  rescind  or 
to  enforce  the  contract.113  He  may  perfect  the  title  at  any  time 

2»  Murrell  v.  Goodyear,  1  De  G.,  F.  &  J.  432.  Westall  v.  Austin,  5  Ired.  Eq. 
(N.  C.)  1;  Kindley  v.  Gray,  6  Ired.  Eq.  (N.  C.)  445.  Bush  v.  Marshall,  6 
How.  (U.  S.)  691.  Roller  v.  Effinger,  (Va.)  14  S.  E.  Rep.  337. 

"Ante,  §  202.    Fosgate  v.  Herkimer  Mfg.  Co.,  12  Barb.   (N.  Y.)-352. 

"  Presbrey  v.  Kline,  20  D.  C.  513. 

"Post,   §   310. 

s8Fry  Sp.  Pref.  (3d  Am.  ed.)  §  1349;  2  Dan.  Ch.  Pr.  1195,n.;  Adams  Eq. 
(5th  Am.  ed.)  199,  209.  Langford  v.  Pitt,  2  P.  Wms.  631;  Boehm  v.  Wood, 
1  Jac.  &  Walk.  419;  Haggart  v.  Scott,  1  Russ.  &  Myl.  293;  Seton  v.  Slade,  7 
Ves.  270;  Eyston  v.  Seymond,  1  Yo.  &  Coll.  E.  C.  608.  Hepburn  v.  Dunlop, 
1  Wh.  (U.  S.)  196;  McKay  v.  Carrington,  1  McLean  (U.  S.),  64.  Owens 
v.  Cowan,  7  B.  Mon.  (Ky.)  152;  Gaither  v.  O'Doherty,  (Ky.)  12  S.  W.  Rep. 
306;  Spicer  v.  Jones,  (Ky.)  1  S.  W.  Rep.  810;  Holmes  v.  Holmes,  107  Ky. 
163;  53  S.  W.  Rep.  29.  Pierce  v.  Nichol,  1  Paige  (N.  Y.),  244;  Dutch  Church 
v.  Mott,  7  Paige  (N.  Y.),  77;  Voorhees  v.  De  Meyer,  2  Barb.  (N.  Y.)  37; 
Baumeister  v.  Demuth,  82  N.  Y.  Supp.  831;  84  App.  Div.  394;  Baldwin  v. 
McGrath,  83  N.  Y.  Supp.  582;  41  Misc.  Rep.  39.  Jenkins  v.  Whitehead,  15 
Miss.  577;  Moss  v.  Davidson,  9  Miss.  112;  Fletcher  v.  Wilson,  1  Smed.  & 
M.  Ch.  (Miss.)  376.  Luckett  v.  Williamson,  37  Mo.  388;  Isaacs  v.  Skrainka, 
95  Mo.  517;  8  S.  W.  Rep.  427.  Wilson  v.  Tappan,  6  Ohio,  172.  Dubose  v. 
James,  McMull.  Eq.  (S.  C.)  55.  Morgan  v.  Scott,  26  Pa.  St.  51;  Townsend 
v.  Lewis,  35  Pa.  St.  125.  Syne  v.  Johnston,  3  Call  (Va.),  558.  Second  Union, 
etc.,  Soc.  v.  Hardy,  31  N.  J.  Eq.  442;  Young  v.  Collier,  31  N.  J.  Eq.  444. 
McKinney  v.  Jones,  55  Wis.  39.  Mitchell  v.  Allen,  69  Tex.  70;  Burwell  v. 
Sollock,  (Tex.  Civ.  App.)  32  S.  W.  Rep.  844.  Coleman  v.  Burk,  115  Ala. 
307;  22  So.  Rep.  84.  Stevenson  v.  Polk,  71  Iowa,  288;  32  N.  W.  Rep.  340; 
Mock  v.  Chalstrom,  121  Iowa,  411;  96  N.  W.  Rep.  909.  Maryland  Const. 


OF  THE  EIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE.       799 

before  decree  by  obtaining  a  release  of  incumbrances*4  or  of  adverse 
claims.35  Therefore,  where  the  contract  required  the  conveyance  of 
a  fee  and  the  vendor  had  only  a  life  estate,  but  pending  a  suit  bv 
him  for  specific  performance  the  life  estate  fell  in,  the  purchaser 
was  compelled  to  complete  the  contract.36  So,  also,  where  the  ven- 
dor became  divested  of  the  title,  but  reacquired  it  pending  suit  by 
the  purchaser  for  rescission.37  And  where  the  vendor,  pending  a 
suit  by  him  for  specific  performance  had,  by  mistake,  conveyed  the 
subject-matter  of  the  suit  with  other  parcels  to  a  stranger,  but  pro- 
cured a  conveyance  before  the  hearing,  the  purchaser  was  required 
TO  complete  the  contract.38  Where  the  contract  does  not  provide  a 

Co.  v.  Kuper,  90  Md.  529;  45  Atl.  197.  McNeill  v.  Fuller,  121  N.  C.  209; 
28  S.  E.  Rep.  299;  Hobson  v.  Buchanan,  96  N.  C.  444.  Allstead  v.  Nicol,  123 
Cal.  594;  56  Pae.  Rep.  452.  Schwartz  v.  Woodruff,  132  Mich.  513;  93  N.  W. 
Rep.  1067.  Seaver  v.  Hall,  50  Neb.  878;  70  N.  W.  Rep.  373,  72  N.  W.  Rep. 
217.  Wynne  v.  Morgan,  7  Ves.  202.  This  is  a  much  cited  case.  The  suit 
was  by  the  vendor  for  specific  performance.  The  defendant,  in  his  answer, 
did  not  object  that  time  was  material,  and  time  was  accordingly  allowed  in 
which  to  procure  an  act  of  parliament  removing  an  objection  to  the  title;  and 
the  act  was  procured  in  three  months  thereafter.  The  rule  was  thus  stated: 
"  Where  the  time  at  which  the  contract  was  to  be  executed  is  not  material, 
and  there  is  no  unreasonable  delay,  the  vendor,  though  not  having  a  good 
title  at  the  time  the  contract  was  to  be  executed,  nor  when  the  bill  was  filed, 
but  being  able  to  make  a  good  title  at  the  hearing,  is  entitled  to  a  specific 
performance."  Approved  in  Richmond  v.  Gray,  3  Allen  (Mass.),  25.  If  the 
purchaser  acquiesce  in  steps  by  the  vendor  to  procure  the  title,  he  must 
accept  the  same  if  made  out  at  the  hearing.  Haggart  v.  Scott,  1  Russ.  &  Myl. 
293.  In  Hale  v.  New  Orleans,  18  La.  Ann.  321,  it  seems  to  have  been  held 
that  the  vendor  had  no  right  in  that  case,  to  perfect  the  title  after  the  pur- 
chaser had  begun  a  suit  for  rescission.  The  vendor  may  perfect  the  title  and 
tender  a  deed  at  any  time  before  final  decree  for  rescission  is  actually  en- 
rolled and  signed.  Fraker  v.  Brazelton,  12  Lea  (Tenn.),  278. 

"Soper  v.  Kipp,  5  N.  J.  Eq.  383;  Young  v.  Collier,  31  N.  J.  Eq.  444. 

"Eyston  v.  Symond,  1  Yo.  &  Col.  Ch.  608.  McKay  v.  Carrington,  1  Mc- 
Lean (U.  S.),  64.  Voorhees  v.  De  Meyer,  2  Barb.  (N.  Y.)  37.  The  vendee 
cannot  refuse  to  perform  the  contract  on  the  ground  that  the  vendor  has  per- 
mitted the  premises  to  be  sold  for  delinquent  taxes,  if  the  time  in  which  the 
premises  may  be  redeemed  has  not  expired.  Marsh  v.  Wyckoff,  10  Boaw. 
(N.  Y.)  202. 

"Jenkins  v.  Fahig,  73  N.  Y.  358. 

"Jenkins  v.  Whitehcad,  7  Sm.  &  M.   (Miss.)    577. 

81  Wooding  v.  Grain,  10  Wash.  35;  38  Pac.  Rep.  756.  As  to  the  right  to 
rescind  where  the  vendor  has  conveyed  the  premises  to  a  stranger,  see  post, 
{  315. 


800  MARKETABLE    TITLE    TO    REAL    ESTATE. 

time  within  which  the  vendor  is  to  remove  defects  shown  by  the 
abstract,  a  reasonable  time  should  be  allowed  therefor." 

The  general  statement  frequently  met  with  in  the  reports  and 
text  books,  that  the  vendor  may  perfect  the  title  at  any  time  before 
decree  in  the  cause  in  which  the  right  is  claimed,  is  rather  vague 
and  indefinite.  Time  may  not  have  been  material  at  the  day  fixed 
for  completing  the  contract,  nor  at  the  time  when  suit  for  specific 
performance  was  begun,  but  may  become  so  before  a  hearing  and 
decree  be  had;  these  may  not  transpire  for  many  months,  and 
sometimes  years,  after  the  institution  of  the  suit.  The  rule  then, 
it  is  conceived,  should  be  taken  with  this  qualification,  namely, 
that  if  at  the  hearing,  the  value  of  the  property,  the  situations  of 
the  parties,  and  the  general  circumstances  of  the  transaction  have 
go  changed  as  to  render  it  inequitable  to  compel  the  purchaser  to 
receive  the  perfected  title,  specific  performance  on  his  part  will  be 
denied. 

Of  course  if  the  purchaser  knows  at  the  time  of  the  contract  that 
the  title  is  defective,  and  that  some  time  will  be  required  to  remove 
the  objections,  he  cannot  insist  upon  a  rescission  without  affording 
the  vendor  an  opportunity  to  perfect  the  title.40  Where  neither  the 
terms  of  the  contract  nor  the  circumstances  of  the  parties  make  per- 
formances at  the  specified  time  material,  the  purchaser  cannot,  on 
finding  the  title  defective,  rescind  the  contract  without  notifying 
the  vendor  to  remove  the  defects  within  a  reasonable  time.41  The 
question  whether  the  vendor,  after  he  has  conveyed  the  premises  to 
the  purchaser  with  covenants  for  title,  will  be  allowed  to  perfect 
the  title  by  purchasing  the  rights  of  an  adverse  claimant,  and  re- 
quiring the  purchaser  to  take  the  after-acquired  title  in  lieu  of 

a  1  Sugd.  Tend.  (8th  Am.  ed.)  397.  Easton  v.  Montgomery,  90  Cal.  307;  27 
Pac.  Rep.  280.  A  provision  that  the  seller  should  furnish  a  merchantable 
nbetract  of  title  within  ten  days  from  the  date  of  the  contract,  and  a  deed 
to  the  property  within  three  days  after  the  title  was  found  to  be  good,  does 
not  require  that  the  title  shall  be  perfected  within  the  three  days  after 
delivery  of  the  abstract.  The  seller  is  entitled  to  a  reasonable  time  in  which 
to  correct  irregularities.  Evans  v.  Gerry,  174  111.  595;  51  N.  E.  Rep.  615. 

"Ante,  §  85.  1  Sugd.  Vend.  (8th  Am.  ed.)  407;  Fry  Sp.  Perf.  §  1307. 
Set  on  v.  Slade,  7  Ves.  265,  a  leading  case.  Barrett  v.  Gaines,  8  Ala.  373. 
Craddock  v.  Shirley,  3  A.  K.  Marsh.  (Ky.)  288.  Jackson  v.  Ligon,  3  Leigh 
(Va.),  161;  Reeves  v.  Dickey,  10  Grat.  (Va.)  138. 

"  Schiffer  v.  Dietz,  83  N.  Y.  300;  Myers  v.  DeMeier,  52  X.  Y.  647. 


OF  THE  EIGHT  OF  THE  VENDOR  TO  PEEFECT  THE  TITLE.       801 

damages  for  breach  of  the  covenants,  has  already  been  considered.41 
The  vendor  cannot  have  an  indefinite  time  in  which  to  perfect 
the  title.  In  a  case  in  New  York,  the  trial  judge  directed  that  the 
vendor  should,  by  proceedings  to  be  instituted  by  him  within  sixty 
days  against  certain  parties  having  adverse  interests,  establish  a 
particular  fact  necessary  to  the  validity  of  his  title.  On  appeal 
this  was  held  error,  the  court  saying:  "  The  effect  of  this  order  was 
to  change  utterly  the  purchaser's  contract,  and  bind  him  to  an 
agreement  which  he  never  made.  It  left  the  period  of  performance 
entirely  uncertain  and  indefinite.  The  seller  could  begin  his  pro- 
ceeding within  sixty  days,  and  after  that  was  free  to  pursue  the 
litigation  at  his  pleasure,  while  the  purchaser  remained  bound 
for  an  unknown  period,  with  no  guaranty  of  getting  a  title  in  the 
end.43 

§  310.  Exceptions  to  the  rule:(i)  Where  time  is  of  the  es- 
sence of  the  contract.  The  rule  which  allows  the  vendor  to  remove 
objections  to  the  title  after  the  time  fixed  for  completing  the  con- 
tract does  not  apply  where  time  is  of  the  essence  o£  the  contract.44 
Thus,  if  a  man  buy  a  house,  to  be  used  by  him  as  a  residence,45  or 
if  he  buy  property  for  speculative  purposes,  or  for  the  purposes  of 
trade  or  manufacture,  or  for  any  other  purpose  which  would  be 
defeated  by  compelling  him  to  await  the  vendor's  efforts  to  perfect 
the  title,  specific  performance  by  him  will  not  be  enforced  if  the 
vendor  be  unable  at  the  appointed  time  to  convey  such  a  title  as  the 
contract  requires.46  Time  will  not  be  deemed  to  have  been  of  the 

"Ante,    §    215. 

43  People  v.  Open  Board,  etc.,  92  N.  Y.  98.    In  Emerson  v.  Roof,  CO  How.  Pr. 
(N.  Y.)   125,  the  purchaser  was  allowed  twenty  days  in  which  to  perfect  the 
title. 

44 1  Sugd.  Vend.  (8th  Am.  ed.)  404;  Fry  Sp.  Perf.  (3d  Am.  ed.)  I  1041, 
et  seq.  Seibel  v.  Purchase,  134  Fed.  Rep.  484. 

44  Gedye  v.  Duke  of  Montrose,  26  Beav.  45 ;  Tilley  v.  Thomas,  L.  R.,  3  Ch.  61. 
Distinguish  these  cases  from  Webb  v.  Hughes,  L.  R.,  10  Eq.  281,  where  the 
conditions  of   sale   provided  that  if  from  any  cause  whatever  the  purchase 
should  not  be  completed  on  a  specified  day,  interest  should  be  paid  on  the 
purchase  money.     Time  was  allowed  in  which  to  perfect  the  title,  though  the 
premises  were  bought  for  immediate  occupation  as  a  residence. 

"Fry  Sp.  Perf.   (3d  Am.  ed.)   S  1044,  et  seq.    Going  v.  Oakland,  etc.,  Soc., 
117  Mich.  230;  75  N.  W.  Rep.  462.     Where  property  was  purchased  for  im- 
mediate use  as  a  lumber  yard,  a  delay  of  four  months  in  perfecting  the  title 
was  held  material.     Parsons  v.  Gilbert,  45  Iowa.  33. 
51 


802  MARKETABLE  TITLE  TO  REAL  ESTATE. 

essence  of  the  contract  where  the  purchaser  knew  that  there  were 
defects  in  the  title  which  could  only  be  removed  by  legal  proceed- 
ings for  that  purpose.47  Time  may  be  made  material  by  express 
stipulation  in  the  contract,  by  the  surrounding  circumstances  of  the 
parties,  and  by  notice  that  the  party  giving  it  will  exercise  his 
right  to  rescind  unless  the  contract  be  completed  within  a  certain 
time.4*  If  the  thing  sold  be  of  greater  or  less  value,  according  to 
the  efflux  of  time,  then  time  is  of  the  essence  of  the  contract.4*  It 
should  be  observed  here  that  the  right  to  perfect  the  title  after  the 
time  fixed  for  completing  the  contract  is  a  concession  to  the  vendor 
by  the  courts  of  equity.  At  law  time  is  always  deemed  of  the  es- 
sence of  the  contract ;  and,  if  the  vendor  cannot  produce  a  clear  title 
at  the  appointed  time,  the  purchaser  will  be  entitled  to  his  action 
for  damages.50 

As  a  general  rule  the  objection  that  time  is  material  cannot  be 
made  if  the  title  to  a  small  part,  only,  of  the  premises  has  failed. 
The  vendor  may  perfect  his  title  to  that  part,  and  specific  perform- 
ance will  not  be  denied.51  It  is  apprehended  that  this  rule  would 
not  apply  if  the  part  to  which  the  title  had  failed,  though  small, 
was  the  principal  inducement  to  the  contract. 

If  the  purchaser  intends  to  insist  upon  time  as  a  material  ele- 
ment of  the  contract,  he  should  demand  a  title  and  offer  to  rescind 
at  the  time  fixed  for  completing  the  contract  if  the  vendor  be  un- 
able to  perform.  If  he  continues  in  possession  and  proceeds  with 
the  payment  of  the  purchase  money  after  that  time,  he  cannot,  as 
a  general  rule,  deny  the  right  of  the  vendor  to  perfect  the  title.5* 
If  he  gives  time  after  the  day  fixed  for  the  performance  of  the  con- 

"Kemper  v.  Walker,  17  Ky.  Law  R.  1100;   32  S.  W.  Rep.  1093. 

•Post,  "  Exceptions,"  4,  8  and  9.  Pry  Sp.  Perf.  (3d  Am.  ed.)  f  1044,  et  *eq. 
Express  stipulation  in  the  contract,  Mackey  v.  Ames,  31  Minn.  103;  16  N.  W. 
Rep.  541 :  by  notice.  Myers  \.  De  Meier,  4  Daly  (N.  Y.),  343;  affd.,  52  N.  Y. 
647;  Emerson  v.  Roof,  66  How.  Pr.  (X.  Y.)  125. 

*  Hepwell  v.  Knight,  1  Yo.  *  Coll.  419.    Hoyt  v.  Tuxbury,  70  Dl.  331. 

»1  Sugd.  Vend.  (8th  Am.  ed.)  397  (258).  Frazier  v.  Boggs,  37  Fla.  307; 
20  So.  Rep.  245.  This  operates  no  very  great  hardship  upon  the  vendor,  as, 
according  to  the  generally  prevalent  rule,  the  purchaser  could  recover  damages 
only  to  the  extent  of  the  purchase  money  paid.  Ante,  §  91. 

*  1  Sugd.  Vend.  (8th  Am.  ed.)  331  (218).    Chamberlain  v.  Lee,  10  Sim.  444. 
•Evans  v.  Boiling,  5  Ala.  550. 


OF  THE  EIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE.       803 

tract,  he  will,  in  most  cases,  be  deemed  to  have  waived  the  objec- 
tion that  time  was  material.13  The  vendor  as  well  as  the  purchaser 
may  avail  himself  of  the  objection  that  time  was  of  the  essence  of 
the  contract.  He  cannot  be  compelled  to  hold  property,  fluctuating 
in  value,  until  the  purchaser  can  pay  for  it,M  But  if  time  were  not 
material  he  cannot  refuse  to  convey  because  the  purchase  money 
was  not  paid  on  the  day  fixed.55  It  is  obvious  that  the  purchaser 
cannot  object  that  time  is  material  when  he  i?  in  possession,  and 
the  failure  to  convey  is  brought  about  by  his  default  in  the  pay- 
ment of  the  purchase  money.5* 

And  it  has  been  held,  even  in  a  case  in  which  time  was  made  of 
the  essence  of  the  contract,  that  the  purchaser  could  not  resist  the 
payment  of  the  purchase  money  on  the  ground  that  the  vendor  had 
not  the  title  on  the  day  fixed  for  the  performance  of  the  contract, 
if  he,  the  purchaser,  failed  to  tender  the  purchase  money  on  that 
day,  and  the  vendor  afterwards  acquired  the  title  and  tendered  a 
deed  before  bringing  his  action  for  the  purchase  money.57 

"Stevenson  v.  Polk.  71  Iowa,  278;  32  N.  W.  Rep.  340.  What  is  meant  by 
the  maxim  that  time  Ms  not  of  the  essence  of  the  contract  in  equity,  has  been 
nowhere  more  clearly  stated  than  in  Mr.  Bispham's  Principles  of  Equity  (3d 
cd.),  5  391:  "A  court  of  equity  will  relieve  against,  and  enforce  specific 
performance,  notwithstanding  a  failure  to  keep  the  dates  assigned  by  the 
contract,  either  for  the  completion,  or  the  steps  towards  completion,  if  it  can 
do  justice  between  the  parties,  and  if  there  is  nothing  in  the  express  stipula- 
tions between  the  parties,  the  nature  of  the  property,  or  the  surrounding 
circumstances  which  would  make  it  inequitable  to  interfere  with  and  modify 
the  legal  right.  This  is  what  is  meant  and  all  that  is  meant  when  it  is 
said  that  in  equity  time  is  not  of  the  essence  of  the  contract."  Language  of 
Lord  CAIRNS  in  Tilley  v.  Thomas,  L.  R.,  3  Ch.  App.  67. 

"Fuller  v.  Hovey,  2  Allen  (Mass.),  325;  Goldsmith  v.  Guild,  10  Allen 
(Mass.),  239.  Here  the  contract  was  dated  March  nineteenth,  and  was  to  bo 
completed  in  ten  days.  The  purchaser  offered  to  perform  March  thirty-first, 
but  the  vendor  refused.  Specific  performance  was  denied,  there  being  evidence 
that  the  value  of  the  property  had  changed.  But  in  Barnard  v.  Lee,  97  Mass. 
92,  where  the  purchase  money  was  to  have  been  paid  on  April  first,  but  was 
not  tendered  till  the  twenty-fifth  of  the  following  May.  specific  performance 
by  the  vendor  was  decreed,  the  purchaser  having  in  the  meanwhile  entered 
upon  and  improved  the  land,  with  his  knowledge  and  consent.  Bra*hier  v. 
Gratz,  6  Wh.  (U.  S.)  533.  See,  also.  Presbrey  v.  Kline,  20  D.  C.  513. 

••Taylor  v.  Longworth,  14  Pet.   174. 

"Cassell  v.  Cooke,  8  S.  &  R.   (Pa.)  288;   11  Am.  Dec.  610. 

"Augsberg  v.  Meredith,  101  111.  App.  629. 


804  MARKETABLE  TITLE   TO   EEAL  ESTATE. 

§  311.  (2)  Mutual  and  dependent  covenants.  Nor  does  the 
rule  which  permits  the  vendor  to  perfect  the  title  apply  where  the 
.  covenants  for  payment  of  the  purchase  money  and  delivery  of  the 
deed  are  mutual  and  dependent,  and  the  vendor,  at  the  time  fixed 
by  the  contract,  has  not  such  title  as  he  covenanted  to  convey,05  and 
this  though  no  demand  for  the  deed  was  ever  made,  the  time  for 
delivering  the  deed  having  been  specified  in  the  contract.59  But  if 
the  covenants  to  make  title  on  the  one  part,  and  to  pay  the  pur- 
chase money  on  the  other,  are  independent,  and  the  passing  of  the 
title  is  subject  to  the  payment  of  the  purchase  money  as  a  condi- 
tion precedent,  the  vendor  may,  at  any  time,  perfect  his  title  before 
the  purchase  money  is  paid,  and  it  is  no  defense  to  an  action  for 
the  purchase  money  that  the  title  is  incomplete.60 

§  312.  (3)  Waiver  of  right.  If  the  purchaser  objects  to  the 
title  and  declares  that  he  will  not  complete  the  contract,  and  the 
seller  acquiesces  in  the  declaration,  he  cannot  afterwards  remove 
the  objections  to  the  title  and  require  the  purchaser  to  accept  a  con- 
veyance.61 So,  e  converse,  as  we  have  seen,  a  purchaser  who  refuses 
to  complete  the  contract  on  account  of  a  defect  in  the  title,  cannot 
afterwards  demand  specific  performance  by  the  vendor.62 

§  313.  (4)  Loss  and  injury  to  purchaser.  The  rule  that  the 
vendor  may  perfect  the  title  after  the  time  fixed  for  completing  the 
contract,  does  not  apply  where  to  enforce  it  would  entail  loss  and 
injury  upon  the  purchaser,  as  where  the  land  has  greatly  depreci- 
ated in  value  pending  the  removal  of  objections  to  the  title.63 

"Stitzel  v.  Copp,  9  W.  &  S.  (Pa.)  29;  Magaw  v.  Lothrop,  4  W.  &  S.  (Pa.) 
321.  Clark  v.  Weis,  87  111.  438;  29  Am.  Rep.  60;  Tryce  v.  Dittus,  199  111. 
189;  65  N.  E.  Rep.  220.  Hudson  v.  Max  Meadows  L.  &  J.  Co.,  99  Va.  537; 
39  S.  E.  Rep.  215.  Meshew  v.  Southworth,  133  Mich.  335;  94  N.  W.  Rep.  1047. 

"Craig  v.  Martin,  3  J.  J.  Marsh.    (Ky.)   50;   19  Am.  Dec.  157. 

"Ante,  §§  86,  253.  Robb  v.  Montgomery,  20  Johns.  (N.  Y.)  15;  Greenby 
v.  Cheevers,  9  Johns.  (N.  Y.)  126. 

81  1  Sugd.  Vend.   (8th  Am.  ed.)  408.     Guest  v.  Homfray,  5  Ves.  818. 

*  Ante,  §  193.     Presbrey  v.  Kline,  20  D.  C.  513. 

**  Bisph.  Eq.  ( 3d  ed. )  §  394 ;  2  Beach  Mod.  Eq.  Jur.  §  495.  McKay  v.  Car- 
rington,  1  McLean  (U.  S.),  50.  Jackson  v.  Edwards,  22  Wend.  (N.  Y.)  518; 
Dutch  Church  v.  Mott,  7  Paige  Ch.  (N.  Y.)  77;  Nodine  v.  Greenfield,  7  Paige 
Ch.  (N.  Y.)  544;  34  Am.  Dec.  363.  Garnett  v.  Macon,  6  Call  (Va.),  308,  370; 
Morriss  v.  Coleman,  1  Rob.  (Va.)  478;  McAllister  v.  Harmon,  101  Va.  17; 
42  S.  E.  Rep.  920;  Hendricks  v.  Gillespie,  25  Gratt.  (Va.)  181,  in  which  case 
the  war  of  1861-18G5  intervened  between  the  purchase  of  the  land  and  the 


OF  THE  EIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE.       805 

Therefore,  where  the  improvements  on  the  premises  were  destroyed 
by  fire  after  the  time  fixed  for  completing  the  contract,  and  the 
vendor  furnished  no  sufficient  excuse  for  not  tendering  a  suffi- 
cient deed  at  the  appointed  time,  it  was  held  that  he  could  not 
thereafter  claim  the  right  to  perfect  the  title.64  Injury  from  mere 
delay  in  making  title  will  not  be  presumed ;  the  burden  devolves 
on  the  purchaser  to  show  that  he  has  been  or  will  be  injured  by  the 
delay.85  If  the  object  of  the  purchaser  be  to  resell,  and  by  reason 
of  a  defect  in  the  title  he  loses  an  opportunity  to  sell,  time  will  be 
deemed  of  the  essence  of  the  contract.66 

§  314.  (5)  Fraud  of  the  vendor.  The  vendor  cannot  enforce 
the  rule  in  any  case  in  which  he  has  been  guilty  of  fraud  or  has 
acted  in  bad  faith  in  respect  to  the  title.87  This  exception,  of 

vendor's  suit  for  specific  performance,  so  that  the  value  of  the  land  had 
greatly  depreciated.  In  Hepburn  v.  Auld,  5  Cranch  (U.  S.),  279,  LIVINGSTON, 
J.,  observed:  "It  is  said  by  the  English  authorities  that  lapse  of  time  may 
be  disregarded  in  equity  in  decreeing  a  specific  performance  of  a  contract  for 
the  sale  of  land.  But  there  is  a  vast  difference  between  contracts  for  land  in 
that  country  and  this.  There  the  lands  have  a  known,  fixed  and  staple  value. 
Here  the  price  is  continually  fluctuating  and  uncertain.  A  single  day  often 
makes  a  great  difference,  and  in  almost  every  case  time  is  a  very  material 
circumstance."  These  remarks  were  approved  in  Richmond  v.  Gray,  3  Allen 
(Mass.),  25,  the  court  adding:  "At  the  present  day  business  is  done  with  suoli 
comparative  speed,  and  changes  of  property  and  in  places  of  business  are  s«» 
frequent,  that  it  would  in  most  cases  be  inequitable  to  compel  a  party  to 
accept  property  after  any  considerable  delay,  or  to  compel  him  to  keep  hi* 
funds  unemployed  through  fear  that  the  court  may  order  him  to  accept  it,  on 
terms  of  delay  that  he  has  never  assented  to."  In  Darrow  v.  Horton,  6  N.  V. 
State  Rep.  718,  an  objection  to  the  title  not  having  been  removed  until  after 
the  usual  renting  period,  whereby  an  opportunity  to  rent  the  premises  was 
probably  lost,  specific  performance  at  the  suit  of  the  vendor  was  denied. 
Where  time  was  not  originally  of  the  essence  of  the  contract,  a  delay  of  two 
months  in  making  title  was  held  immaterial,  even  though  the  premises  ha. I 
somewhat  decreased  in  value.  Tapp  v.  Nock,  (Ky.)  12  S.  W.  Rep.  713.  Delay 
of  three  months  and  twenty  days  after  last  installment  of  purchase  money 
became  due,  hold  not  material,  no  injury  to  the  purchaser  being  shown. 
Wooding  v.  Grain,  10  Wash.  35;  38  Pac.  Rep.  756. 

"Smith  v.  Cansler,  83  Ky.  367. 

"Merchants'  Bank   v.  Thompson,  55  N.  Y.  7. 

™  Spaulding  v.  Fierle,  SO  Hun.  17,  citing  Merchants'  Bank  v.  Thompson,  .">."» 
N.  Y.  7,  and  Schmidt  v.  Reed,  132  N.  Y.  116;  30  N.  E.  Rep.  373,  in  neither  of 
which  cases,  however,  docs  it  appear  that  an  opportunity  to  resell  had  been 
lost. 

"Fry  Sp.  Perf.  (3d  Am.  ed.)  5  1342.  Dalby  v.  Pullen.  1  Kuss.  4  Myl.  296. 
Meeks  v.  Garner,  93  Ala.  17;  8  So.  Rep.  378:  Hickson  v.  Linggold,  47  Ala. 


806  MARKETABLE  TITLE   TO   REAL  ESTATE. 

course,  cannot  apply  if  the  purchaser  bought  with  knowledge  that 
the  title  was  defective.68  The  exception  will  be  enforced  as  well 
where  the  contract  has  been  fully  executed  as  where  it  is  executory. 
Thus,  a  covenantor  who  fraudulently  conceals  the  state  of  the  title 
cannot  compel  the  covenantee  to  accept  an  after-acquired  title  in 
satisfaction  of  the  covenants.69  But  a  mere  innocent  misrepresen- 
tation of  the  title  will  not  deprive  the  vendor  of  his  right  to  perfect 
the  title.70  And  if  the  vendee  waives  the  fraud  by  continuing  in 
possession  and  negotiating  with  the  vendor,  the  latter  may  insist 
upon  perfecting  the  title.71  It  has  been  said  that  if  there  is  great 
inadequacy  of  consideration,  the  vendor  will  be  strictly  held  to  the 
performance  of  the  contract  at  the  appointed  time.72 

§  315.  (6)  Want  of  colorable  title.  The  rule  does  not  apply 
\\here  the  vendor  had  no  power  whatever  to  sell.  The  vendor  can- 
not undertake  to  substitute  the  contract  of  a  third  person  for  his 
own.73  This  exception  will  not,  of  course,  apply  where  the  vendor 

449.  Christian  v.  Cabell,  22  Gratt.  (Va.)  82.  Brown  v.  Haff,  5  Paige  (N.  Y.) , 
241.  Easton  v.  Montgomery,  90  Cal.  307;  27  Pac.  Rep.  280.  Moss  v.  Hanson, 
17  Pa.  St.  379.  Blackmore  v.  Shelby,  8  Humph.  (Tenn.)  439-;  Woods  v. 
North,  6  Humph.  (Tenn.)  309;  44  Am.  Dec.  312.  Green  v.  Chandler,  25 
Tex.  160;  Hall  v.  Clountz  (Tex.  Civ.  App.),  63  S.  VV.  Rep.  941.  Spencer  v. 
Sandusky,  46  W.  Va.  582;  33  S.  E.  Rep.  221.  Hays  v.  Tribble,  3  B.  Mon.  (Ky.) 
106.  But  see  Schiffer  v.  Dietz,  83  N.  Y.  300,  where  a  different  view  seems 
to  have  been  taken. 

•*  Harris  v.  Carter,  3  Stew.  (Ala.)  233;  Teague  v.  Wade,  59  Ala.  369. 
Reeves  v.  Dickey,  10  Gratt.  (Va.)  138.  The  right  to  perfect  the  title  will  not 
be  conceded  where  the  defect  was  known  to  the  vendor  and  by  him  concealed 
from  the  purchaser.  Kenny  v.  Hoffman,  31  Gratt.  (Va.)  442. 

"Ante,  §  215.  Alvarez  v.  Brannan,  7  Cal.  503;  68  Am.  Dec.  275.  Elliott  v. 
Blair,  6  Coldw.  (Teun.)  185;  Blackmore  v  Shelby,  8  Humph.  (Tenn.)  438. 

'"Buford  v.  Guthrie,  14  Bush    (Ky.),  690. 

T1  Schiffer  v.  Dietz,  83  N.  Y.  300. 

75  Seymour  v.  Delancey,  7  Paige  (N.  Y.),  445,  520,  citing  Kien  v.  Stukely,  2 
Bro.  P.  C.  396. 

73 2  Beach  Mod.  Eq.  Jur.  §  612;  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1343.  In  re 
Bryant,  L.  R.,  44  Ch.  Div.  218.  "The  vendor  cannot  say,  '  I  will  substitute  a 
contract  with  somebody  else,'  "  per  KAY,  J.  In  this  case  trustees  under  a  will, 
who  had  no  power  to  sell  until  the  death  of  a  life  tenant,  offered  to  perfect 
the  title  by  procuring  a  contract  to  sell  from  the  life  tenant.  The  offer  was 
refused  and  a  return  of  the  deposit  directed.  This  case  must  be  distinguished 
from  Salisbury  v.  Hatcher,  2  Yo.  &  C.  Ch.  54.  where  a  tenant  for  life  who 
lu'.d  sold  the  fee  was  permitted  to  perfect  the  title  by  getting  the  consent 
of  the  parties  in  remainder.  See,  also,  the  remarks  of  Chief  Justice  MAR- 


OF  THE  EIGHT  OF  THE  VENDOB  TO  PEBFECT  THE  TITLE.       807 

is  apparently  the  owner,  or  has  a  colorable  title.74  Nor  where,  at  the 
time  of  the  sale,  he  had  the  equitable  title,  though  he  did  not  dis- 
close to  the  purchaser  the  fact  that  the  legal  title  was  outstanding.78 
^or  where  the  title  fails  to  a  portion  of  the  estate  only.7'  Nor 
where  the  vendor  gets  in  the  legal  title,  or  procures  the  holder 
thereof  to  join  in  a  conveyance  of  the  estate  by  the  time  fixed  for 
completing  the  contract.77  It  has  been  held  that  if  the  vendor 
have  only  an  equitable  title  he  will  not  be  entitled  to  time  in  which 
to  get  in  the  legal  title.  The  purchaser  cannot  be  compelled  to 
await  the  termination  of  proceedings  instituted  for  that  purpose.7* 
But  of  course,  he  may  get  in  the  legal  title  if  he  can  at  any  time 


SHALL  in  Garnett  v.  Macon,  6  Call  (Va.),  308,  370.  Pipkin  v.  James,  1 
Humph.  (Tenn.)  325;  34  Am.  Dec.  652.  Oliver  v.  Dix,  1  Dev.  &  Bat.  Eq. 
(N.  C. )  158.  Where  a  husband  contracted  to  sell  in  his  own  right  property 
belonging  to  his  wife,  specific  pen'ormance  at  his  suit  was  denied,  even  though 
lie  tendered  a  conveyance  in  which  his  wife  joined.  Luse  v.  Dietz,  46  Iowa, 
205.  Contra,  Chrissman  v.  Partee,  38  Ark.  31.  The  fact  -that  the  premises 
have  been  sold  for  taxes  is  no  objection  to  specific  performance  at  the  suit 
of  the  vendor,  if  the  right  to  redeem  has  not  expired  and  the  vendor  offers 
to  redeem;  such  a  case  is  not  a  speculation  by  the  vendor  in  a  third  person's 
title.  Ley  v.  Huber,  3  Watts  (Pa.),  367.  In  Wells  v.  Lewis,  4  Mete.  (Ky.) 
269,  it  was  held  that  a  title  under  a  deed  from  a  joint  executor,  invalid 
because  of  failure  of  the  other  executor  to  join  in  the  deed,  could  not  be  per- 
fected without  the  purchaer's  consent,  by  tendering  to  him  a  deed  from  one 
entitled  under  the  will  to  the  proceeds  of  the  sale  of  the  land. 

"Chamberlain  v.  Lee,   10  Sim.  444. 

TSProv.  Loan  &  Tr.  Co.  v.  Mclntosh,  (Kans.)  75  Pac.  Rep.  498. 

7*  As  in  Dresel  v.  Jordan,   104  Mass.  407. 

"Dresel  v.  Jordan,  104  Mass.  414,  criticising  Hurley  v.  Brown,  98  Mass. 
547;  96  Am.  Dec.  671.  Logan  v.  Ball,  78  Ky.  607,  in  which  case  the  legal 
title  was  in  the  wife  of  the  vendor,  and  a  conveyance  executed  by  both  hus- 
band and  wife  was  tendered  to  the  purchaser.  But  see  Luse  v.  Deitz,  46 
Towa,  205,  supra,  and  Ft.  Payne  Coal  &  I.  Co.  v.  Webster,  (Mass.)  39  N.  E. 
Rep.  786,  where  held  that  if  the  vendor  disable  himself  from  performing  the 
contract  by  conveying  the  premises  to  a  stranger,  the  purchase  may,  of  course, 
detain  the  purchase  money.  In  Webber  v.  Stephenson,  (Wash.)  39  I'ac.  Rep. 
052,  it  was  held  that  a  contract  for  the  sale  of  land  would  not  be  rescinded 
merely  because,  before  the  time  fixed  for  its  completion,  the  vendor  had 
conveyed  the  premises  to  a  stranger,  since  he  might  still  be  able  to  perform 
the  contract  by  procuring  the  stranger  to  convey  to  the  purchaser.  If  such 
a  conveyance  were  made  after  the  time  fixed  for  completing  the  contract. 
there  would  seem  to  be  no  question  as  to  the  right  of  the  purchaser  to  rescind. 

"Dart.  Vend.  70.  Camp  v.  Morse,  5  Den.  (N.  Y.)  165.  Jones  v.  Taylor, 
7  Tex.  240;  56  Am.  Dec.  48.  Christian  v.  Cabell,  22  Grat.  (Va.)  104. 


808  MARKETABLE  TITLE  TO   REAL  ESTATE. 

/ 

before  that  fixed  for  completing  the  contract.79  And  if  the  pur- 
chaser knew,  at  the  time  he  purchased,  that  the  legal  title  was 
outstanding,  and  the  contract  provides  that  the  vendor  will  cause 
a  good  and  sufficient  deed  to  be  made  to  him,  the  purchaser  cannot 
resist  specific  performance  on  the  ground  that  the  vendor  has  only 
the  equitable  title.  Such  a  case  is  not  one  in  which  the  vendor, 
acting  mala  fide,  speculates  in  the  property  of  a  stranger.80  The 
rule  that  the  vendor  may  perfect  the  title  at  any  time  before  that 
fixed  for  performance  of  the  contract,  does  not  apply  where  the 
husband  sells  the  community  estate  of  himself  and  wife,  because 
the  husband  is,  in  those  States  in  which  such  estate  exists,  pro- 
hibited by  statute  from  selling  or  disposing  of  the  same.81  But  if 
the  purchaser  buys  in  ignorance  of  the  nature  of  the  estate  he  will 
not  be  permitted  to  rescind  if  the  wife  offers  to  join  in  the  con- 
veyance.82 

A  provision  in  a  contract  of  sale  that  the  vendor  shall  be  allowed 
time  in  which  to  perfect  the  title,  supposes  that  he  has  a  colorable 
title  to  the  premises,  and  does  not  mean  a  reasonable  time  in  \vhich 
to  purchase  the  estate  when  he  has  no  pretensions  to  the  title.83  If 
the  vendor  takes  upon  himself  to  contract  for  the  sale  of  an  estate, 
and  is  not  the  absolute  owner  of  it,  and  has  not  the  power,  by  the 
ordinary  course  of  law  or  equity,  to  make  himself  so,  a  court  of 
equity  will  not  compel  specific  performance  by  the  purchaser, 
though  the  actual  owner  offer  to  make  the  seller  a  title ;  "  for  any 

79  Beach  Mod.  Eq.  Jur.  §  812;  Tiernan  v.  Roland,  15  Pa.  St.  429.  Townshend 
v.  Goodfellow,  40  Minn.  312. 

10  Scott  v.  Thorp,  4  Ed\v.  Ch.  (N.  .Y.)  1.  Burks  v.  Davies,  85  Cal.  110; 
24  Pac.  Rep.  613.  Tison  v.  Smith,  8  Tex.  147.  Hunt  v.  Stearns,  5  Wash.  St. 
167;  31  Pac.  Rep.  468. 

"Hooper  v.  Jackson,  3  Wash.  Ty.  235:  3  Pac.  Rep.  841;  Hoover  v. 
Chambers,  3  Wash.  Ty.  26;  13  Pac.  Rep.  547. 

*2  Colcord  v.  L«ddy,  4  Wash.  St.  791 ;  31  Pac.  Rep.  320.  If  the  husband  sells 
the  wife's  land  the  purchaser  cannot  rescind  if  the  wife  ratifies  the  contract 
and  joins  in  a  conveyance.  Chrisman  v.  Partee,  38  Ark.  31  (Contra,  Luse  v. 
Deitz,  46  Iowa,  205.  Gage  v.  Cummings,  209  111.  120;  70  N.  E.  Rep.  679). 
In  a  case  in  which  the  vendor,  who  was  to  convey  with  full  covenants,  acted 
as  agent  for  his  mother  without  disclosing  the  fact,  it  was  held  that  the 
purchaser  must  accept  a  deed  from  the  mother,  with  full  covenants  of  title. 
McDonald  v.  Bach,  60  N.  Y.  Supp.  557 ;  29  Misc.  Rep.  96. 

83  Benedict  v.  Williams,  39  Minn.  77 ;  38  N.  W.  Rep.  707.  Primm  v.  Wise,. 
126  Iowa,  528;  102  N.  W.  Rep.  427. 


OF  THE  BIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE.       809 

seller  ought  to  be  a  bona  fide  contractor,"  and  it  would  tend  to 
infinite  mischief  if  an  owner  were  permitted  to  speculate  upon  the 
sale  of  another  man's  estate.84  The  rule  that  the  vendor  may,  with 
certain  exceptions,  perfect  his  title  at  any  time  before  decree,  can- 
not be  so  construed  as  to  compel  the  purchaser  to  accept  a  convey- 
ance from  a  stranger.  The  purchaser  has  a  right  to  the  securities 
afforded  by  the  covenants  of  his  vendor.85  But  if 'the  purchaser 
actually  accept  such  conveyance,  he  cannot  afterwards  refuse  to  pay 
the  purchase  money  on  the  ground  that  the  conveyance  was  not  exe- 
cuted by  his  vendor.86 

Inasmuch  as  it  is  clear  that  want  of  title  in  the  vendor  at  the 
time  of  the  sale  is  no  objection  to  specific  performance  if  he  be  able 
to  procure  the  title  by  the  time  fixed  for  completing  the  contract, 
no  reason  is  perceived  why  the  purchaser  should  not  be  compelled 
to  accept  the  conveyance  of  a  stranger  if  the  vendor  joined  therein 
with  such  covenants  for  title  as  the  purchaser  could  require,  for  this 
is  in  substance  the  same  as  if  the  vendor  had  taken  a  conveyance  to 
himself,  and  thereupon  immediately  conveyed  to  the  purchaser.  It 
has  been  held,  however,  in  a  case  in  which  the  vendor  delivered  his 
own  warranty  deed  and  the  warranty  deed  of  a  third  person,  who 
held  the  legal  title,  to  the  purchaser,  but  it  did  not  appear  that  there 
had  been  a  conveyance  from  such  third  person  to  the  vendor,  that 
the  purchaser  was  justified  in  rejecting  the  deed,  and  this  upon  the 

"Tendring  v.  London,  2  Eq.  Cas.  Abr.  680.  Burks  v.  Davis,  85  Cal.  110: 
24  Pac.  Rep.  613. 

"Ante,  §  18.  Reynolds  v.  Smith,  6  Bl.  (Ind.)  200,  the  court  saying: 
"  Such  a  title  as  the  purchaser  contracted  for  he  had  a  right  to  demand, 
secured  by  the  covenants  of  the  vendor,  and  free  from  blemish.  The  terms 
of  the  contract  would  be  essentially  varied  if  a  third  person,  without  consent, 
were  substituted  to  do  that  which  one  of  the  contracting  parties  had  bound 
himself  to  perform."  In  re  Head's  Trustees,  L.  R.,  45  Ch.  Div.  310,  the  objec- 
tion was  made  that  an  executorial  trustee  in  that  case  had  no  authority  under 
the  will  to  sell  the  testator's  real  estate  for  the  payment  of  debts,  and  it  was 
held  that  the  objection  could  not  be  removed  by  procuring  the  beneficiaries 
of  the  estate  to  join  in  a  conveyance  by  the  executor  after  the  time  fixed 
for  completing  the  contract. 

"Hamilton  v.  Hulett,  (Minn.)  53  N.  W.  Rep.  364.  Where  the  title  was  in 
a  minor,  and  the  vendor  procured  and  tendered  a  deed  from  him,  and  the  pur- 
chaser accepted  such  deed,  it  was  held  that  the  contract  would  not  be 
rescinded  thereafter,  upon  the  ground  that  the  minor  might  di«nffirm  the 
deed  after  coming  of  age,  there  being  no  claim  of  fraud  or  mistake  in  the  case. 
Dentler  v.  O'Brien,  (Ark.)  19  S.  W.  Rep.  111. 


810  MARKETABLE   TITLE   TO   REAL  ESTATE. 

ground  that  the  record  must  show  title  in  the  grantor.87  The  rea- 
sons for  this  decision  are  not  clear.  It  is  true  that  the  purchaser 
is  entitled  to  insist  that  the  title  which  he  gets  shall  be  evidenced  as 
the  law  requires,  and,  generally,  in  America,  that  the  title  shall 
appear  of  record.  But  if  he  actually  gets  the  record  title,  it  would 
seem  immaterial  from  what  source  it  comes,  provided  he  has  the 
benefit  of  his  Vendor's  covenant  of  warranty. 

Generally,  it  may  be  stated,  that  if  a  suit  by  the  vendor  at  law  or 
in  equity,  other  than  to  compel  a  conveyance  of  the  legal  title,88  is 
necessary  to  perfect  his  title,  the  purchaser  cannot  be  compelled  to 
complete  the  contract.89  It  has  been  held  that  a  subsequent  sale  and 
conveyance  of  the  premises  by  the  vendor  to  a  stranger  is  no  ground 
for  rescission,  where  such  second  purchaser  took  with  notice  of 
the  prior  purchaser's  rights:90  This  decision  deserves  much  con- 
sideration. Should  the  first  purchaser  be  put  to  the  trouble  and 
expense  of  compelling  specific  performance  at  the  hands  of  the 
purchaser  with  notice  ? 

Specific  performance  of  a  contract  by  two  to  convey  lands  may 
be  decreed  where  the  two  are  able  to  convey  a  complete  title  accord- 
ing to  contract,  though  neither  could  alone  do  so.91 

§  316.  (7)  Laches  of  vendor.  The  vendor  cannot  insist  upon 
his  right  to  perfect  the  title  after  the  time  fixed  for  the  completion 
of  the  contract  in  a  case  in  which  he  has  shown  great  laches  and 
want  of  diligence  in  performing  the  terms  of  the  contract  on  his 

"George  v.  Conhaim,  38  Minn.  338;  37  X.  W.  Rep.  791.  This  decision  was 
really  obiter,  the  court  having  overlooked  the  fact  that  there  had  been  a  con- 
veyance of  the  legal  title  to  the  vendor. 

"Andrew  v.  Babcock,  (Conn.)   20  Atl.  Rep.  715. 

88  People  v.  Open  Board,  etc.,  92  X.  Y.  98.  Eggers  v.  Busch,  154  111.  604; 
39  N.  E.  Rep.  619.  Reynolds  v.  Strong,  82  Hun  (X.  Y.),  202;  31  N.  Y.  Supp. 
329. 

"Hoock  v.  Bowman,  42  Neb.  87;  60  X.  W.  Rep.  391.  Kreitsch  v.  Mertz,  119 
Mich.  343;  78  X.  W.  Rep.  124.  But  see  McCann  v.  Edwards,  6  B.  Mon.  (Ky.) 
208,  which  was  a  suit  to  enjoin  the  collection  of  the  purchase  money,  and  in 
which  time  was  allowed  a  vendor  to  file  a  cross-bill,  bringing  before  the  court 
certain  persons,  who,  it  was  alleged,  had  an  adverse  interest  in  the  premises. 
And  in  Lyons  v.  Piatt,  (X.  J.  Eq.)  26  Atl.  Rep.  334,  a  vendor  was  allowed 
forty-five  days  in  which  to  perfect  the  title  by  suit  to  compel  reformation  of 
a  deed  which  was  intended  to  convey  a  fee,  but  which,  from  want  of  words  of 
inheritance,  conveyed  only  a  life  estate. 

"Resnick  v.  Campbell,  (X.  J.  Eq.)   59  Atl.  452. 


OP  THE  RIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE.       811 

part,  or  in  bringing  his  suit  for  specific  performance,  or  in  prose- 
cuting the  suit  after  it  has  been  instituted.91  A  party  cannot  call 
upon  a  court  of  equity  for  this  extraordinary  relief  "  unless  he  has 
shown  himself  ready,  desirous,  prompt  and  eager."9*  But  less  dili- 
gence is  required  .of  the  vendor  in  perfecting  the  title  when  the 
purchaser  is  in  possession  than  when  he  is  not.  The  purchaser  will 
as  a  general  rule  be  deemed  to  have  waived  his  right  to  require  a 
strict  performance  on  the  part  of  the  vendor  at  the  time  fixed  for 
completing  the  contract,  if  he  take  and  retain  possession  of  the 
premises  knowing  that  the  title  is  imperfect.94 

§  317.  (8)  Effect  of  special  agreement.  The  rule  does  not 
apply,  of  course,  in  a  case  in  which  the  contract  expressly  stipulates 
that  either  party  may  rescind  in  case  of  non-performance  at  the 
specified  time ;  or  if  such  an  intention  can  be  fairly  inferred  from 
the  contract.  In  such  a  case  the  parties  themselves  have  chosen  to 
make  the  time  of  performance  material,  and  a  court  of  equity  has 
no  power  to  make  a  new  contract  for  them.93  Thus,  where  the 
vendor  agreed  to  make  a  good  title  "  on  demand,"  time  in  which  to 
perfect  the  title  after  demand  was  refused.98  If  the  contract  ex- 

K  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1071.  Watts  v.  Waddle,  6  Pet.  (U.  S.)  389. 
Cotton  v.  Ward,  3  T.  B.  Mon.  (Ky.)  304,  313.  Welch  v.  Matthews,  98  Mass. 
131.  McAllister  v.  Harmon,  101  Va.  17 ;  42  S.  E.  Rep.  920.  Muller  v.  Palmer, 
144  Cal.  305;  77  Pac.  Rep.  954.  Harding  v.  Olsen,  177  111.  298;  52  N.  E.  Rep. 
482.  Black  Hills  Nat.  Bank  v.  Kellogg,  4  S.  Dak.  312;  56  N.  W.  Rep.  458. 
In  Kimball  v.  Bell,  49  Kans.  173;  30  Pac.  Rep.  240,  a  delay  of  seven  months 
by  the  vendor  in  removing  an  incumbrance  from  the  premises,  after  the  pur- 
chase money  had  been  paid  in  full,  was  held  unreasonable;  and  the  purchaser 
•was  permitted  to  recover  back'  the  purchase  money.  Lyles  v.  Kirkpatrick,  9 
S.  C.  265,  the  delay  in  this  case  held  not  unreasonable. 

"Per  Lord  ALVANLEY,  M.  R.,  in  Milward  v.  Earl  of  Thanet,  5  Ves.  720, 
note. 

"Tompkins  v.  Hyatt,  28  N.  Y.  347. 

*  2  Beach  Mod.  Eq.  Jur.  §  592.  At  one  time  it  seems  to  have  been  the  doc- 
trine of  the  equity  courts  that  time  would  not  be  deemed  of  the  essence  of 
the  contract  no  matter  how  clearly  such  an  intention  appeared  from  the  con- 
tract. Per  Lord  THURLOW  in  Gregson  v.  Riddle,  cited  in  Seton  v.  Slade,  7 
Yes.  268,  by  Sir  SAMUEL  ROMILI.Y  arguendo.  Gibson  v.  Patterson,  1  Atk.  12. 
But  the  rule  as  stated  in  the  text  has  been  long  established.  2  Story  Eq.  Jur. 
§  780;  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1046:  Bishp.  Eq.  (3d  ed.)  S  396. 
Lowery  v.  Niccolls,  11  111.  App.  450. 

"'Goetz  v.  Walter,  34  Minn.  241;  25  N.  W.  Rep.  404.  Where  the  vendor 
agreed  to  convey  a  good  title  on  demand  after  payment  of  a  part  of  the  pur- 


812  MARKETABLE  TITLE   TO   REAL  ESTATE. 

pressly  provides  that  the  title  shall  be  made  good  within  a  speci- 
fied time,  if  it  proves  defective  the  vendor  cannot  claim  the  right  to 
perfect  the  title  after  the  expiration  of  that  time.97  As  a  general 
rule  until  the  time  fixed  for  completing  the  contract  the  purchaser 
has  a  right  to  rely  upon  the  unpaid  purchase  money  as  a  fund  with 
which  to  remove  incumbrances.  But  where  the  contract  requires 
the  vendor  to  convey  free  of  incumbrances,  he  must  discharge 
incumbrances  before  the  time  fixed  for  completing  the  contract. 
He  cannot  impose  upon  the  purchaser  the  burden  of  procuring 
releases.98  Of  course  the  specification  in  the  contract  of  a  time  at 
which  it  is  to  be  performed  will  not  of  itself  make  time  material ;" 
it  must  appear  that  the  parties  really  intended  to  make  such  time 
an  essential  element  of  their  agreement;1  "a  material  object  to 
which  they  looked  in  the  first  conception  of  it."2 

It  has  been  held  that  the  vendor  cannot  claim  the  right  to  cure 
defects  in  the  title  if  the  contract  provides  that  the  purchase  money 
shall  be  refunded  in  case  the  title,  upon  examination,  should  prove 
unsatisfactory  to  the  purchaser.3  Such  an  agreement,  however,  is 

chase  money  and  execution  of  securities  for  the  balance,  it  was  held  that  he 
was  entitled  to  a  reasonable  time  in  which  to  execute  the  deed  after  demand, 
but  not  to  time  in  which  to  perfect  the  title.  In  such  case  time  was  made 
material  by  the  contract,  and  it  devolved  upon  the  vendor  to  have  a  perfect 
title  when  demand  was  made.  Gregory  v.  Christian,  42  Minn.  304;  44  N.  W. 
Rep.  202. 

97Mackey  v.  Ames,  31  Minn.  103;  16  N.  W.  Rep.  541.  The  contract  in  this 
case  contained  the  following  provision :  "  And  it  is  agreed  that  if  the  title  of 
said  premises  is  not  good,  and  cannot  be  made  good  within  sixty  days  from 
date  hereof,  this  agreement  shall  be  void."  Joslyn  v.  Schwend,  85  Minn.  130 ; 
88  N.  W.  Rep.  410. 

"Morange  v.  Morris,  42  N.  Y.  48;  Zorn  v.  McParland,  32  N.  Y.  Supp.  770. 

M  2  Beach  Mod.  Eq.  Jur.  §  592. 

1  Language  of  GRAY,  J.,  in  Barnard  v.  Lee,  97  Mass.  94,  citing  Molloy  v. 
Egan,  7  Ir.  Eq.  592.     Jones  v.  Robbins,  29  Me.  351 ;  50  Am.  Dec.  593. 

2  Language  of  Lord  ERSKINE  in  Hearne  v.  Tenant,  13  Ves.  289.    In  Toole  v. 
Toole,  22  Abb.  N.  Cas.   (N.  Y.)   392,  specific  performance  at  the  suit  of  the 
vendor  was  refused  apparently  upon  no  other  ground  than  that  he  had  not 
perfected  the  title  by  the  time  fixed  for  the  completion  of  the  contract.     There 
is  nothing  in  the  case  to  show  that  time  was  material. 

sAverett  v.  Lipscomb,  76  Va.  404;  Watts  v.  Holland,  86  Va.  999;  11  S.  E. 
Rep.  1015.  In  a  case  in  which  a  deed  was  deposited  in  escrow,  with  a 
written  agreement  that  the  purchaser  might  abandon  the  sale  if  the  title 
should  not  be  found  by  the  depositary  to  be  indefeasible,  it  was  held  that  the 
vendor  had  no  right  to  perfect  the  title  by  procuring  a  release  from  a  prior 
purchaser  of  the  premises.  Fletcher  v.  Moore,  42  Mich.  577. 


OF  THE  EIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE.       813 

implied  in  every  case  in  which  time  is  of  the  essence  of  the  contract, 
and  no  good  reason  is  perceived  why  the  vendor  should  be  denied 
the  right  to  perfect  his  title  where  time  is  not  material,  by  a  mere 
expression  of  what  is  implied  in  the  contract.  If  the  purchaser 
wishes  to  deprive  the  vendor  of  the  right  to  perfect  the  title,  he 
may  do  so  by  providing  that  time  shall  be  material.4 

§  318.  (9)  Effect  of  notice  and  request  to  perfect  the  title. 
If  the  vendor  has  been  guilty  of  gross,  vexatious,  unreasonable  or 
unnecessary  delay  in  performing  the  contract  on  his  part  the  pur- 
chaser may  by  notice  of  a  purpose  to  rescind  in  the  alternative, 
restrict  him  to  a  reasonable  time  within  which  to  perfect  the  title.5 
And  the  vendor  has  the  same  right  with  respect  to  the  payment 
of  the  purchase  money.6  -But  neither  party  can  arbitrarily  ter- 
minate the  rights  of  the  other  in  this  respect ;  the  notice  must  fix 
a  reasonable  limit.7  Thus,  a  notice  by  the  purchaser,  after  negotia- 
tions respecting  the  title  had  been  going  on  for  more  than  three 
years,  that  he  would  rescind  unless  a  marketable  title  were  shown 
within  five  weeks,  was  held  unreasonable  and  ineffectual.8  It  is 
not  necessary,  for  the  purposes  of  this  exception,  that  the  notice 
should  be  in  writing.9 

§  319.  IN  WHAT  PROCEEDINGS  THE  VENDOR  MAY  CLAIM 
THE  RIGHT  TO  PERFECT  THE  TITLE.  Obviously  the  right  of 

the  vendor  to  perfect  the  title  while  the  contract  is  executory,  may 
be  asserted  in  any  proceeding  in  equity  in  which  specific  perform- 
ance is  claimed  by  him,  or  rescission  is  sought  by  the  purchaser.10 

•Mackey  v.  Ames,  31  Minn.  103;   16  N.  W.  Rep.  541. 

•Fry.  Sp.  Perf.  (3d  Am.  ed.)  §  1062;  2  Ue.ich  Mod.  Eq.  Jur.  §  592. 
Prothro  v.  Smith,  6  Rich.  Eq.  (S.  C.)  324. 

•Ante,  exception  7.  Hatch  v.  Cobb,  4  Johns.  (N.  Y.)  559.  Jackson  v. 
Ligon,  3  Leigh  (Va.),  161. 

'Fry  Sp.  Perf.    (3d.  Am.  od.)    §   1064,  and  cases  there  cited. 

•McMurray  v.  Spicer,  L.  R.,  5  Eq.  527.  Notice  on  Dec.  23d  that  title 
must  be  made  by  next  following  Jany.  1st,  held  insufficient  in  Thompson  v. 
Dulles,  5  Rich.  Eq.  (S.  C.)  370. 

•  Nokes  v.  Lord  Kilmorey,  1  DeG.  &  Sm.  444. 

10  Hughes  v.  McNider,  90  N.  C.  248.  On  bill  by  the  purchaser  for  rescission, 
the  vendor  should  be  allowed  a  reasonable  time  in  which  to  clear  up  the 
title.  Metcalf  v.  Dalian,  4  J.  J.  Marsh.  (Ky.)  196;  Jackson  v.  Murray,  5 
T.  B.  Mon.  (Ky.)  184;  17  Am.  Dec.  53.  The  vendor  may  remove  a  technical 
objection  to  the  title  in  a  suit  by  the  purchaser  to  enjoin  the  collection  of 
the  purchase  money.  Mays  v.  Swope,  8  Gratt.  (Va.)  46.  See,  also,  McCann 


814  MAKKETABLE  TITLE  TO  REAL  ESTATE. 

But  in  an  action  at  law  to  recover  back  the  purchase  money,  or  for 
breach  of  the  contract,  except  in  those  States  in  which  the  dis- 
tinction between  legal  and  equitable  procedure  is  abolished,  or  in 
which  equitable  defenses  may  be  interposed  in  actions  at  law,  it  is 
presumed  that  imless  the  vendor  had  perfected  his  title  at  the  time 
of  trial,11  he  would  be  forced  to  seek  his  relief  in  equity  by  suit  for 
specific  performance,  or  by  injunction  against  the  purchaser's  pro- 
ceedings at  law.  In  either  case,  it  is  apprehended  that  a  judgment 
at  law  against  the  vendor  would  not  be  a  bar  to  the  proceeding  in 
equity  by'him,  claiming  the  right  to  perfect  the  title,  unless  the 
ground  of  his  application  to  equity  would  constitute  a  defense  or 
claim  of  which  he  might  have  availed  himself  at  law.  But  if  the 
vendor  goes  to  trial  at  law  insisting  upon-  the  sufficiency  of  the  title, 
and  judgment  is  rendered  against  him,  it  may  be  doubted  whether 
he  would  afterwards  be  allowed  time  in  which  to  remove  objections 
to  the  title.12  But  wherever  the  distinction  between  legal  and  equi- 
table procedure  has  been  swept  away,  it  is  apprehended  that  in  any 
case  in  which  the  right  to  perfect  the  title  exists,  and  in  any  action 
by  the  vendor  to  recover  the  purchase  money.13  or  by  the  purchaser 

T.  Edwards,  6  B.  Mon.  (Ky.)  208.  In  Bell  v.  Sternberg,  53  Kans.  571,  the 
vendor,  after  being  sued  by  the  purchaser  to  recover  back  the  purchase  money, 
was  allowed  to  perfect  the  title.  But  see  Pipkin  v.  James,  1  Humph.  (Tenn.) 
325,  34  Am.  Dec.  652,  where  it  seems  to  have  been  held  that  the  vendor  can- 
not perfect  the  title  after  a  suit  to  recover  back  the  purchase  money  has 
been  begun.  See,  also,  Lutz  v.  Compton,  77  Wis.  584;  46  N.  W.  Rep.  889. 
Goetz  v.  Waters,  34  Minn.  241;  25  N.  W,  Rep.  404.  This  may  be 
doubted;  the  purchaser  would  always  have  it  in  his  power  to  defeat 
the  vendor's  right  to  perfect  the  title  by  bringing  an  action  to  recover  back 
what  had  been  paid.  In  Beauchamp  v.  Handley,  1  B.  Mon.  (Ky.)  135,  it  was 
said  that  a  vendor  when  sued  for  damages  for  breach  of  contract  in  failing 
to  make  title  at  the  specified  time,  is  not  obliged  to  avail  himself  of  the 
defense  that  he  has  perfected  the  title,  but  may  set  up  that  fact  as  a  defense 
in  a  suit  to  enjoin  him  from  collecting  the  purchase  money;  and  that,  though 
the  judgment  for  damages  in  favor  of  the  purchaser  was  a  virtual  rescission 
of  the  contract. 

"Lutz  v.  Compton,  77  Wis.  584;  46  N.  W7.  Rep.  889.  In  an  action  by  the 
vendor  to  recover  damages  against  the  vendee  for  breach  of  his  contract  to 
exchange  lands  with  the  plaintiff,  the  latter  may  offer  in  evidence  a  deed 
curing  a  defect  in  his  title,  which  was  executed  before  the  action  was  brought. 
Burr  v.  Todd,  41  Pa.  St.  206. 

"In  Hayes  v.  Tribble,  3  B.  Mon.  (Ky.)  106,  the  purchaser  obtained  an 
injunction  against  a  judgment  for  the  purchase  money  on  the  ground  that 


OF  THE  EIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE.       813 

to  recover  back  what  has  been  paid,"  or  to  recover  damages  for  a 
breach  of  the  contract,15  except  in  cases  of  fraud,  the  vendor  may 
show  that  he  has  perfected  the  title,  and  thereby  removed  all 
ground  for  the  purchaser's  claim  or  defense.  In  New  York,  how- 
ever, it  has  been  held  that  if  neither  party,  in  an  action  for  dam- 
ages for  breach  of  contract  to  convey  free  of  incumbrances,  asks 
equitable  relief,  it  will  not  avail  the  defendant  that  incumbranoes 
were  removed  by  him  before  the  trial." 

The  collection  of  the  purchase  money  will,  of  course,  be  sus- 
pended while  the  title  is  being  perfected."  The  vendor  srets  inter- 
est on  the  purchase  money,  and  the  purchaser  receives  the  rents 
and  profits.18  In  some  of  the  States  a  grantee  with  covenants  for 
title  is  allowed  an  injunction  against  the  collection  of  the  purchase 
money  on  failure  of  the  title,  where  the  grantor  is  insolvent  or  a 
non-resident.19  This  relief  has  been  refused  where  the  grantor 
perfected  the  title  before  decree  in  a  suit  by  the  grantee  to  enforce 
a  lien  for  the  purchase  money  paid,  or  to  rescind  the  contract.20 

the  title  was  unmarketable.  The  defendant,  instead  of  asking  time  to  remove 
the  objections  to  the  title,  claimed  that  they  were  untenable,  and  tendered  a 
conveyance  which  the  court  below  decreed  that  the  complainant  should  ac- 
cept. This  was  reversed  on  appeal,  and  the  vendor,  defendant  having  gone  to 
trial  below  on  the  sufficiency  of  the  objections  to  fhe  title,  time  in  which 
to  remove  them  was  refused. 

"As  in  Williams  v.  Porter  (Ky.),  21  S.  W.  Rep.  643  (not  officially  re- 
ported) ;  Widmer  v.  Martin,  87  Cal.  88:  25  Pac.  Rep.  264.  Keep  v.  Simpson. 
38  Tex.  203.  Lessly  v.  Morris,  9  Phila.  (Pa.)  110;  30  Leg.  Int.  108,  where  held 
that  incumbrances  might  be  removed  up  to  the  time  of  trial.  In  an  nrtion  for 
the  purchase  money  of  land,  the  purchaser  cannot  defend  on  the  ground  that 
the  conveyance  to  him  is  defective  in  that  it  fails  to  contain  in  the  body 
thereof  the  name  of  a  party  who  signed  it,  if  at  the  trial  the  vendor  tenders 
a  deed  in  which  the  objection  is  removed.  Keeble  v.  Bank,  (Ala.)  9  So. 
Rep.  583. 

"Lockwood  v.  Hannibal  &  St.  J.  R.  Co.,  65  Mo.  233. 

"In  Haynes  v.  Farley,  4  Port.  (Ala.)  528,  it  seems  to  have  been  con- 
sidered that  the  vendor  cannot  perfect  the  title  after  the  purchaser  has  begun 
an  action  to  recover  damages  for  breach  of  the  contract. 

"  Mott  v.  Ackerman,  92  N.  Y.  539 ;  Higgins  v.  Eagleton,  34  N.  Y.  Supp.  325. 

"Jones  v.  Taylor,  7  Tex.  240;   50  Am.  Dec.  48. 

"2  Bisph.  Eq.  §  392.     Post,  {  324. 

"Post,  §  331. 

"Stokes  v.  Acklen,  (Tenn.)  ;  46  S.  W.  Rep.  316.  McElya  v.  Hill,  105 
Tenn.  319;  59  S.  W.  Rep.  1025. 


816  MARKETABLE  TITLE  TO  REAL  ESTATE. 

§  320.  REFERENCE  OF  TITLE  TO  MASTER  IN  CHANCERY. 
When  directed.  In  suits  for  the  specific  performance  of  contracts 
for  the  sale  of  lands,  whether  by  the  vendor  or  the  purchaser,  if 
any  question  is  made  as  to  the  ability  of  the  vendor  to  make  title, 
the  court  may,  at  the  instance  of  either  party,  refer  the  cause  to  a 
master  in  chancery,  or  other  officer  having  like  duties,  with  direc- 
tions to  inquire  and  report  to  the  court  whether  such  a  title  as  the 
contract  requires  can  be  made.21  It  is  said  that  the  purchaser  is 
entitled  to  a  reference,  even  though  he  knows  of  no  objection  to  the 
title.22  But  if  it  appear  that  the  vendor,  at  the  proper  time,  dis- 
closed a  good  title,  the  purchaser  must  pay  the  costs  of  the  inquiry.23 
The  reference  is  a  matter  of  right  and  may  be  directed  without  the 
consent  of  the  other  party.24  And  it  has  been  held  error  in  the 
court  to  refuse  a  reference  when  asked  by  either  party.28 

As  a  consequence  of  the  rule  that  the  vendor  may  perfect  the 
title  at  any  time  before  a  decree  upon  the  merits,  the  inquiry  by 
the  master  is  not  whether  a  title  could  be  made  at  the  date  of  the 
contract,  or  when  the  suit  for  specific  performance  was  begun,  but 
whether  the  vendor  can  make  out  a  title  at  any  time  before  the 
master  makes  his  report.26  But  if,  from  any  cause,  such  as  a  mate- 
rial change  in  the  value  of  the  property,  it  would  be  inequitable  to 
compel  a  specific  performance  by  the  purchaser  upon  the  coming  in 
of  the  master's  report  showing  that  the  title  has  been  or  may  be 
perfected,  it  is  apprehended  that  the  vendor  could  not  have  a 
decree. 

§  321.  When  refused.  The  court  will  not  direct  a  reference 
where  the  sale  was  of  such  title  only  as  the  vendor  might  have.27 

"1  Sugd.  Vend.  (8th  Am.  ed.)  526;  Fry  Sp.  Perf.  (3d  Am.  ed.)  §§  1280, 
et  seq.  Jenkins  v.  Hiles,  6  Ves.  653;  Cooper  v.  Deane,  1  Ves.  Jr.  565. 
McComb  v.  Wright,  4  Johns.  Ch.  (N.  Y.)  659.  Beverly  v.  Lawson,  3  Munf. 
(Va.)  317. 

*  Jenkins  v.  Hiles,  6  Ves.  646.    Middleton  v.  Selby,  19  W.  Va.  167. 
3Lyle  v.  Earl  of  Yarborough,  John.  701 

*  Atkinson  on  Marketable  Titles,  226.     Brooke  v.   Clarke,   1   Swanst.  551. 
Gentry  v.  Hamilton,  3  Ired.  Eq.  376.    Beverly  v.  Lawson,  3  Munf.  (Va.)  317. 

"Middleton  v.  Selby,  19  W.  Va.  167. 

*  Fry  Sp.  Perf.  (3d  Am.  ed.)   §  1339. 
"Fry  Sp.  Perf.  (3d  Am.  ed.)  §§  858,  1287. 


OF  THE  RIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE.       817 

where  the  purchaser  has  waived  all  objections  to  the  title." 
Xor  where  the  conditions  of  sale  provide  that  the  vendor  shall  not 
be  required  to  show  a  title.29  The  inquiry,  if  directed,  will  not  be 
extended  to  matters  expressly  excluded  by  the  terras  of  sale,  as 
where  they  provide  that  the  production  of  title  shall  begin  with  a 
particular  instrument,  or  shall  not  be  extended  back  beyond  a  cer- 
tain period.30 

If  a  defect  in  the  title  is  alleged,  and  has  been  prominently  put 
forward  in  the  pleadings,  the  court  may  decree  or  deny  specific 
performance  without  a  reference  to  the  master,81  as  where  the  bill 
and  answer  discloses  that  a  title  cannot  be  made.32  Where  the 
validity  of  the  title  depends  upon  a  question  of  law  and  neither 
party  asks  a  reference,  none  should  be  made ;  the  court  itself  should 
decide  the  question.33  But  if  it  do  not  appear  from  the  pleadings 
that  a  title  cannot  be  made,  it  is  error  to  decree  a  rescission  of  the 
contract  without  directing  a  reference.34  In  a  suit,  by  the  vendor 
for  specific  performance  in  which  the  purchaser  answered  that  the 
title  was  defective,  but  did  not  ask  a  reference,  and  the  proof  did 
not  show  that  the  title  was  doubtful,  it  was  held  that  the  court  did 
not  err  iu  decreeing  specific  performance  without  referring  the 
title.35  Generally  it  may  be  stated  that  the  purchaser  will  not  be 

*  Palmer  v.  Richardson,  3  Strobh.  Eq.  (S.  C.)  10.  Fry  Sp.  Perf.  (3d 
Am.  ed.)  §§  1300,  1305.  As  to  what  amounts  to  waiver  of  objections,  see 
ante,  Ch.  8. 

29  Hume  v.  Bentley,  5  De  G.  &  Sm.  520. 

"Corrall  v.  Cattell,  4  M.  &  W.  734. 

"Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1280.  Tillotson  v.  Gesner,  33  X.  J.  Eq. 
313.  See  Linn  v.  McLean,  80  Ala.  360.  In  a  suit  for  specific  performance  in 
which  want  of  title  is  alleged,  if  the  court  is  satisfied  that  the  objections  to 
the  title  exist  and  are  well  founded,  it  will  not  direct  a  reference  to  the 
master.  Doniinick  v.  Michael,  4  Sandf.  (X.  Y.)  374.  It  "is  not  bound  to 
direct  a  reference  in  such  a  case.  Psislay  v.  Martin,  5  Rich.  Eq.  (S.  C.)  351. 
Omerod  v.-tlardmnn.  5  Ves.  722;  Cooper  v.  Donne,  1  Ves.  565. 

"2  Dan.  Ch.  Pr.  1215;    Frost  v.  Brunson,  0  Yerg.    (Tenn.)   36. 

"Jackson  v.  Ligon.  3  Leigh    (Va.),  1(51. 

M  Frost  v.  Brunson,  6  Yerg.  (Tenn.)  36.  See,  also,  Middleton  v.  Selby, 
19  W.  Va.  167.  Reference  of  the  title  is  unnecessary  on  bill  by  the  purchaser 
to  rescind  if  the  defendant  does  not  allege  title  in  his  answer.  Buchanan 
v.  Alwell,  8  Humph.  (Tenn.)  516. 

*  Core  v.  Wigner,  32  W.  Va.  277 ;  9  S.  E.  Rep.  36. 

52 


MARKETABLE  TITLE   TO  REAL  ESTATE. 

entitled  to  a  reference  where  the  court  is  in  possession  of  all  the 
facts  affecting  the  title.36 

§  322.  At  what  stage  of  the  proceedings  reference  directed. 
The  inquiry  as  to  title  in  a  suit  for  specific  performance  may  be 
made,  (1)  on  motion  before  answer;  (2)  on  motion  after  the  an- 
swer, but  before  hearing,  and  (3)  at  the  hearing.37  In  all  these 
cases  it  seems  that  the  reference  will  be  denied  if  any  question 
involving  the  merits  other  than  the  sufficiency  of  the  title  is  to  be 
determined,  otherwise  the  court  would  fall  into  the  absurdity  of 
having  the  master's  report  on  the  title,  and  a  subsequent  decision 
that  there  is  no  subsisting  agreement.38  It  further  seems,  however, 
that  the  defendant,  after  a  reference  has  been  made,  may  file  his 
answer  setting  up  any  defense  he  pleases.39 

§  323.  Procedure.  Costs.  Testimony  as  to  all  matters  of  fact 
material  to  the  title  may  be  taken  before  the  master.40  In  England 
it  seems  that  the  master  takes  the  advice  of  conveyancing  counsel 
before  passing  on  the  title.  The  report  of  the  master  should  state 
in  terms  whether  the  title  can  or  cannot  be  made  out,  and,  it  seems,. 
in  what  way  it  can  be  perfected.41  It  has  been  held,  however,, 
that  a  report  merely  stating  that  a  good  title  could  be  made,  was 
sufficient.42  If  the  report  be  in  favor  of  the  title,  and  no  exceptions 
thereto  be  filed,  specific  performance  will,  as  a  general  rule,  be 
decreed  at  the  hearing.  If  the  report  be  against  tho  title,  and 
exception  thereto  be  overruled,  the  suit  will  be  dismissed.43  It 

"Goddin  v.  Vaughn,  14  Grat.  (Va.)  102,  128;  Thomas  v.  Davidson,  76  Va. 
338. 

"Fry  Sp.  Perf.  (3d  Am.  ed.)  §§  1323,  1324,  et  seq.  Middleton  v.  Shelby, 
19  W.  Va.  175. 

"Language  of  Lord  ELDON  in  Morgan  v.  Shaw,  2  Mer.  138. 

***  Emery  v.  Pickering,  1 3  Sim.  583. 

*°  The  American  practice,  where  the  title  is  referred,  is  indicated  in  the 
following  language  of  Chancellor  KENT  in  McComb  v.  Wright,  4  Johns.  Ch. 
(N.  Y.)  GoO,  670:  "  I  shall  direct  the  usual  reference  to  a  master,  to  examine 
whether  a  good  title  can  be  given  by  the  plaintiffs  for  the  house  and  lot  sold 
to  the  defendants,  and  that  he  give  to  the  defendants'  solicitor  due  notice 
of  the  examination,  and  that  the  evidence  taken  in  chief  in  this  case  on  the 
point  of  title  be  submitted  to  the  master,  together  with  such  other  competent 
proof  as  the  parties,  or  either  of  them,  may  think  proper  to  furnish,  and 
that  he  report  an  abstract  of  such  title,  together  with  his  opinion  thereon, 
with  all  convenient  speed." 

"Fry  Sp.  Perf.    (3d  Am.  ed.)    §§   1346,  1348. 

"Scott  v.  Sharp,  4  Edw.  Ch.    (N.  Y.)    1. 

"Dart  Vend.    (5th  ed.)   1111;  Fry  Sp.  Perf.   (3d  Am.  ed.)    §  1354. 


OF  THE  EIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE.       819 

seems,  however,  that  even  after  an  exception  to  the  report  by  the 
vendor  has  been  overruled,  he  will  be  allowed  further  time  in  which 
to  remove  an  objection  to  the  title.44  If  after  confirmation  of  the 
master's  report  a  new  fact  appear  by  which  the  title  is  affected,  the 
report  will  be  recommitted  to  the  master  for  further  inquiry.45 

As  a  general  rule  costs  are  given  against  the  vendor  up  to  the 
time  at  which  he  first  shows  a  good  title,  since  the  inquiry  results 
from  his  default.46  But  if  the  purchaser  be  unable  to  sustain  ob- 
jections to  the  title  upon  which  the  reference  was  made,  costs  will 
be  decreed  against  him.47  Of  course  a  party  excepting  to  the  mas- 
ter's report  must  pay  the  costs  of  the  exceptions  if  they  be  over- 
ruled.48 

§  324.  INTEREST  ON  THE  PURCHASE  MONEY  WHILE  THE 
TITLE  IS  BEING  PERFECTED.  In  equity  the  purchaser  of  an  es- 
tate is  regarded  as  the  owner  from  the  time  of  the  contract,  and, 
being  entitled  to  the  rents  and  profits,  is  required  to  pay  interest, 
on  the  purchase  money  from  that  time,49  especially  if  he  be  in  the 
actual  possession  and  enjoyment  of  the  estate.50  But  if  he  be  justi- 
fied in  declining  to  take  possession  on  the  ground  that  there  are 
material  objections  to  the  title,  he  cannot  be  compelled  to  pay  inter- 
est.51 Xor  to  incur  the  expense  of  "  carrying  "  the  property  pend- 

44  Curling  v.  Flight,  2  Ph.  616;  Portman  v.  Mill,  1  Russ.  &  Myl.  696. 

•1  Sugd.  Vend.  (8th  Am.  ed.)  526;  2  Dan.  Ch.  Pr.  1218;  Fry  Sp.  Pcrf. 
(3d  Am.  ed.)  §  1351.  Jendvine  v.  Alcoek,  1  Mad.  597. 

"Green  v.  Chandler,  25  Tex.  148. 

"Phillipson  v.  Gibbon,  L.  R.,  6  Ch.  434. 

"Scott  v.  Thorp,  4  Edw.  Ch.   (N.  Y.)    1. 

"2  Sugd.  Vend.  (8th  Am.  ed.)  314  (627);  1  Warvelle  Vend.  188.  Tn 
Haffey  v.  Lynch,  77  N.  Y.  Supp.  587;  38  Misc.  256,  a  case  in  which  the  title 
was  not  perfected  until  thirteen  years  or  more  after  the  sale,  the  vendor, 
remaining  in  possession,  was  charged  with  the  annual  rental  value  of  the 
property  and  interest  thereon,  and  penalties,  in  excess  of  legal  interest,  on 
unpaid  taxes  and  assessments ;  and  the  purchaser  was  charged  with  the  un- 
paid purchase  money  and  interest  thereon  from  the  day  of  sale,  together  with 
taxes  and  assessments  levied  since  the  day  of  sale. 

'"Oliver  v.  Hallan,  1  Grat.  (Va.)  298.  "If  this  rule  be  not  universal,  the 
party  who  claims  an  exemption  from  its  operation  must  bring  himself  witliin 
some  established  exception."  Brockenbrough  v.  Blyth,  3  Leigh  (Va.).  010, 
(»47.  A  purchaser  must  pay  interest  on  a  sum  reserved  in  his  hands  a*  an 
indemnity  against  an  alleged  claim  of  dower,  he  having  had  possession  of  the 
land,  and  the  right  to  dower  not  having  been  asserted  within  the  statutory 
period  of  limitation.  Boyle  v.  Rowand,  3  Des.  (S.  C. )  553. 

*'2  Sugd.  Vend.  (8th  Am.  ed.)  318  (G30K  citing  Forteblow  v.  Shirley.  2 
Swan  223;  Carrodus  v.  Sharp.  20  Beav.  5fi.  Luckett  v.  Williamson,  37  Mo. 


820  MARKETABLE  TITLE  TO  REAL  ESTATE. 

ing  the  adjustment  of  a  dispute  as  to  his  obligation  to  take  the  ti- 
tle.52 And,  where  a  purchaser,  finding  that  the  title  was  defective, 
offered  to  rescind  the  contract  and  return  the  premises  to  the  ven- 
dor, and  the  offer  was  refused,  it  was  held  that  he  could  not  there- 
after be  required  to  pay  interest,  even  though  he  was  in  possession 
of  the  estate.53  But,  as  a  general  rule,  the  act  of  taking  possession 
is  an  implied  agreement  to  pay  interest,54  and  "  it  must  be  a  strong 
case  and  clearly  made  out "  that  relieves  the  purchaser  from  that 
obligation,  where  he  has  received  the  rents  and  profits.55  It  has 
been  said,  however,  by  the  most  eminent  authority  that  it  cannot 
be  laid  down  as  an  absolute  rule  that  a  purchaser  by  private  con- 
tract shall  pay  interest  from  the  time  of  taking  possession.56  It 
seems  that  if  there  be  material  and  valid  objections  to  the  title,  and 
the  purchaser  be  obliged  to  keep  his  money  idle  and  unproductive 
in  daily  expectation  of  a  perfected  title,  he  will  be  relieved  from 
the  payment  of  interest,  even  though  in  possession,57  provided  the 

388,  395,  obiter.  Kennedy  v.  Koopman,  166  Mo.  87;  65  S.  W.  Rep.  1020; 
Faile  v.  Crawford,  52  N.  Y.  Supp.  353;  30  App.  Div.  536.  It  has  been  held 
that  if  the  objection  is  that  the  title  is  doubtful  only  and  not  absolutely  bad, 
the  purchaser  cannot  refuse  to  pay  interest  on  the  purchase  money.  Sohier 
v.  Williams,  2  Cur.  (C.  C.)  195,  199.  But  see  Kester  v.  Rockel,  2  Watta 
&  S.  (Pa.)  365,  371.  In  Selden  v.  James,  6  Rand.  (Va.)  465,  it  was  held 
that  the  prosecution  of  an  adverse  but  groundless  claim  to  the  land  against 
the  purchaser,  by  reason  of  which  he  detained  the  purchase  money  in  his 
hands,  would  not  excuse  him  from  the  payment  of  interest,  he  being  in  pos- 
session of  the  estate.  This  was  a  case  in  which  the  contract  had  been  exe- 
cuted by  a  conveyance.  See,  also,  Breckenridge  v.  Hoke,  4  Bibb  (Ky.),  272. 

"Steiner  v.  Presb.  Ch.,  45  N.  Y.  Supp.  524;  17  App.  Div.  500. 

"Rutledge  v.  Smith,  1  McCord  Ch.   (S.  C.)  402. 

"Fludyer  v.  Cocker,  12  Ves.  25. 

"Powell  v.  Matyr,  8  Ves.  146. 

M2  Sugd.  Vend.  (8th  Am.  ed.)  317  (629).  Comer  v.  Walker,  Rey.  lib.  A, 
1784,  fol.  625,  where  the  purchaser  had  been  in  possesison  twenty-two  years. 
He  was  required  to  pay  only  a  low  rate  of  interest,  such  as  he  might  have 
realized  from  securities  readily  convertible  into  money.  Where  the  purchaser 
has  been  harassed  or  disturbed  in  the  possession,  where  there  has  been  willful 
and  vexatious  delay  or  gross  or  criminal  laches  in  the  vendor,  where  there  are 
any  well-founded  doubts  of  the  title,  or  where  from  neglect,  or  other  cause, 
for  a  long  time  no  person  is  appointed  to  whom  payment  can  be  made,  it 
should  be  referred  to  a  jury  to  say  whether  the  purchaser  should  be  required 
to  pay  interest. 

"2  Sugd.  Vend.  (8th  Am.  ed.)  315  (628).  Jenkins  v.  Fahey,  73  N.  Y.  355,, 
obiter.  Osborne  v.  Bremer,  1  Des.  (S.  C.)  486.  Hunter  v.  Bales,  24  Ind.  303. 
The  presumption  is  that  the  money  is  unproductive  in  the  vendee's  hands,  and 
he  is  not  chargeable  with  interest,  unless  he  used  it,  which  use  it  devolves  on 


OF  THE  EIGHT  OF  THE  VENDOR  TO  PERFECT  THE  TITLE.       821 

vendor  were  notified  that  the  purchase  money  was  Iving  dead.5*  In 
such  a  case  the  purchaser  takes  the  rents  and  profits  in  satisfaction 
of  the  interest  he  might  have  realized  from  the  investment  of  his 
money.  To  charge  him  with  the  rents  and  profits  would  be  in  effect 
to  make  him  pay  interest  when  losing  the  interest  on  his  own 
money.  Hence,  he  cannot  be  compelled  to  pay  rent  pending  the 
vendor's  efforts  to  perfect  the  title.59  In  accordance  with  the  fore- 
going principles,  it  has  been  held  that  if  the  vendor  be  unable  to 
convey  a  good  title  when  demanded  by  the  purchaser  on  payment 
of  the  purchase  money,  and  the  latter  be  afterwards  required  to 
take  a  perfected  title,  the  vendor  must  pay  to  him  interest  on  the 
purchase  money  received.60  But  this  principle  has,  of  course,  no 
appplication  to  cases  in  which  the  payment  of  the  purchase  money 
and  the  execution  of  a  conveyance  is  deferred  until  some  future 
day,  unless,  upon  the  maturity  of  the  purchaser's  obligations  for 
the  purchase  money,  the  vendor  be  unable  to  convey  and  the  pur- 
chaser be  obliged  to  keep  the  money  idle  awaiting  the  tender  of 
a  perfected  title.61 

the  vendor  to  prove.  Hunter  v.  Bales,  24  Ind.  204,  304.  Bass  v.  Gilliland,  5 
Ala.  761.  A  purchaser  who  is  prevented  from  improving  the  land  by  a  suit 
against  his  vendor  for  recovery  of  the  land,  cannot  he  required  to  pay  interest 
pending  the  suit,  though  it  was  agreed  lhat  improvements  should  be  at  the  risk 
of  the  purchaser  if  the  title  should  be  attacked.  \Yightman  v.  Reside,  2  Des. 
(S.  C.)  578.  A  purchaser  from  one  holding  under  color  of  title  only,  must 
pay  interest  only  from  the  time  his  vendor's  title  was  perfected  by  adverse 
possession.  Baskin  v.  Ilouser,  3  Pa.  St.  430. 

"Powell  v.  Matyr,  8  Yes.  140,  where  it  \vas  said  by  the  master  of  the  roll-* 
after  laying 'down  the  general  rule  that  the  purchaser  must  pay  interest  from 
the  time  of  the  contract:  "  It  does  not  follow  that  the  mere  circumstance  that 
the  vendor  was  not  ready  to  complete  the  title  at  the  day  will  van"  the  rule. 
The  purchaser  must  state  something  more  than  mere  delay,  viz..  that  he  hn< 
not  had  the  benefit  of  his  money,  and  I  think  it  reasonable  to  add  the  other 
term  that  has  been  mentioned,  that  in  some  way  it  shall  be  intimated  to  th" 
vendor  that  the  purchaser  has  placed  himself  in  that  situation,  his  money  un- 
productive and  to  wait  the  event,  otherwise  there  is  no  equality.  The  one 
knows  that  the  estate  produces  rent,  the  other  does  not  know  that  the  money 
does  not  produce  interest.  Wherever,  therefore,  the  purchaser  is  delayed  as 
to  the  title  and  means  to  insist  upon  this,  he  ought  to  apprise  the  other  party 
that  he  is  making  no  interest."  See.  also.  Rutledge  v.  Smith,  1  Mi-Tord  Ch. 
(S.  C.)  403.  Brockenbrough  v.  Blythe.  3  Leigh  (Ya.).  f.in. 

54  1  Sugd.  Ven.  (8th  Am.  ed.)  12  (S).  Dow  son  v.  Solomon.  1  Drew.  A  S.  1 
Aukeny  v.  Clark,  148  U.  S.  345.  Bangs  v.  Barrett,  (R.  I.)  18  All.  Rep.  250. 

"•Pierce  v.  Nichols.  1  Paige   (N.  Y.),  244. 

"  Hunter  v.  Bales.  24  Ind.  303. 


CHAPTER  XXXIII. 

OF  THE  RIGHT  OF  THE  VENDOR  TO  REQUIRE  THE  PURCHASER  TO 
TAKE  THE  TITLE   WITH   COMPENSATION   FOR  DEFECTS. 

GENERAL  RULE.        §    325. 

EXCEPTIONS.     §  326. 

INDEMNITY  AGAINST  FUTURE  LOSS.     §  327. 

§  325.  GENERAL  RULE.  The  vendor,  under  some  circum- 
stances, may  require  the  purchaser  to  take  the  property,  with  com- 
pensation for  failure  of  the  title  as  to  a  portion  of  the  premises 
not  material  to  the  due  enjoyment  of  the  remainder,  or  with  com- 
pensation for  inconsiderable  liens,  charges  or  incumbrances.1  This 

1  1  Sugd.  Vend.  (8th  Am.  ed.)  572  (312)  ;  Adams  Eq.  210;  Bish.  Eq.  (3d  ed.) 
445;  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1178,  et  seq.;  2  Kent  Com.  (llth  ed.)  475; 
1  Story  Eq.  §  779.  Hepburn  v.  Auld,  5  Cranch  (U.  S.),  262;  Pratt 
v  Campbell.  9  Cranch  (U.  S.),  494.  Cheesman  v.  Thorn,  1  Edw. 
Ch.  (N.  Y.)  629;  Meyers  v.  Ringler,  54  N.  Y.  Supp.  280;  34  App.  Div.  415; 
Ten  Broeck  v.  Livingston,  1  Johns  Ch.  (N.  Y.)  357,  where  the  incumbrance 
was  a  quit  rent  of  fifty-four  cents  a  year,  of  which  the  purchaser  had  notice. 
Hadlock  v.  Williams,  10  Vt.  570.  Foley  v.  Crow,  37  Md.  51;  Keating  v. 
Price,  58  Md.  52.  Stoddart  v.  Smith,  5  Binney  (Pa.),  355.  Anderson  v. 
Snyder,  21  W.  Va.  632;  Creigh  v.  Boggs,  19  W.  Va.  240.  Mech.  Bank 
v.  Cleland  (Ky.)  67  S.  W.  386;  Kemper  v.  Walker,  17  Ky.  Law  R.  1100;  32 
S.  W.  1093.  Florence  Oil  Co.  v.  McCandless,  26  Colo.  534;  58  Pac.  1084. 
The  following  instances  in  which  specific  performance  with  compensation  for 
defects  was  decreed  in  favor  of  the  vendor,  have  been  mentioned  by  Mr.  Fry 
(Sp.  Perf.  [3d  Am.  ed.]  §  1194)  :  "Where  an  estate  of  about  186  acres  was 
described  as  freehold,  and,  in  fact,  about  two  acres,  part  of  a  park,  were  held 
only  from  year  to  year.  Calcraft  v.  Roebuck,  1  Ves.  Jr.  221.  Where  there 
was  an  objection  to  the  title  of  six  acres  out  of  a  large  estate,  and  those 
acres  do  not  appear  to  have  been  material  to  the  enjoyment  of  the  rest. 
McQueen  v.  Farquhar,  11  Ves.  467."  The  same  rule  applies,  of  course,  where 
the  title  to  the  entire  premises  is  good,  but  there  is  a  small  deficiency  in  the 
number  of  acres  called  for  by  the  contract.  King  v.  Wilson,  6  Beav.  124. 
Or  where  a  small  portion  of  the  property  is  not  of  the  kind  or  quality  specified 
in  the  agreement  of  sale.  Scott  v.  Hanson,  1  Russ.  &  Myl.  128.  Or  where  a 
term  for  years  is  slightly  shorter  than  that  which  the  vendor  purported  to 
sell.  1  Sugd.  Vend.  (8th  Am.  ed.)  457  (299).  The  purchaser  cannot  be 
required  to  take  the  premises  if  they  are  subject  to  a  ground  rent,  though 
compensation  be  offered,  the  ground  rent  being  an  incumbrance  incapable  of 
removal  without  the  consent  of  the  incumbrancer.  Gans  v.  Renshaw,  2  Barr 
(Pa.),  34;  44  Am.  Dec.  152.  The  existence  of  a  highway  on  the  land  at  best 
only  entitles  the  purchaser  to  a  reduction  of  the  purchase  money  by  the 


EIGHT  OF  THE  VENDOE COMPENSATION   FOR  DEFECTS.       823 

rule  has  been  carried  so  far  that  a  fraudulent  misrepresentation  as 
to  the  title  of  a  small  portion  of  the  land,  not  constituting  a  prin- 
cipal inducement  to  the  purchaser,  and  not  indepensable  to  the 
intended  purposes  of  the  wholf  has  been  held  no  ground  for  re- 
scinding the  contract.2  This  rule  has  also  been  applied  where  the 
purchaser  sought  to  rescind  an  executed  contract.  Thus,  where  by 
mistake  the  grantor  included  in  a  conveyance  of  1,269  acres,  80 
acres  to  which  he  had  no  title,  it  was  held  that  the  grantee  was  en- 
titled to  compensation  for  the  deficiency,  but  not  to  a  rescission  of 
the  contract,  the  eighty  acres  not  being  indispensable  to  the  due  en- 
joyment of  the  rest,  and  not  having  formed  a  special  inducement  to 
the  purchaser.3 

A  condition  of  sale  that  if  any  mistake  or  omission  should  be 
discovered  in  the  description  of  the  property  compensation  must  be 
accepted,  does  not  apply  to  a  defect  of  title  to  a  part  material  to  the 
enjoyment  of  the  rest.4 

"  If  that  part  to  which  the  seller  has  a  title  was  the  purchaser's 
principal  object,  or  equally  his  object  with  the  part  to  which  a  title 
cannot  be  made,  and  is  itself  an  independent  subject  and  not  likely 
to  be  injured  by  the  other  part,  equity  will  compel  the  purchaser  to 
take  it  at  a  proportionate  price,"  and  an  inquiry  will  be  directed  as 
to  whether  the  part  to  which  L  title  cannot  be  made  is  material  to 
the  possession  and  enjoyment  of  the  rest  of  the  estate.6  Where  the 
purchaser  entered  into  the  contract  with  knowledge  that  there  was 
a  trifling  incumbrance  on  the  property,  namely,  a  reservation  of  a 
yearly  rental  of  one  pound  of  wheat,  specific  performance  by  the 
purchaser  was  decreed  without  compensation.6 

As  a  general  rule,  an  acknowledged  and  undisputed  charge  or 
incumbrance  of  a  pecuniary  nature  upon  the  premises  is  no  valid 
objection  to  specific  performance,  since  the  purchase  money  may  be 
applied  to  the  discharge  of  the  incumbrance,  either  under  the  direc- 

a mount  that  such  highway  reduces  the  value  of  the  tract.  Beach  v.  Hudson 
R.  Land  Co.,  65  N.  J.  Eq.  426 ;  56  Atl.  157. 

"Coffee  v.  Newson,  2  Ga.  442.  But  see,  post,  this  chapter,  exception  6, 
15  326. 

'Key  v.  Jennings,  66  Mo.  356. 

'  1  Rugd.  Vend.  478. 

•1  Sugd.  Vend.   (8th  Am.  ed.)  477. 

•Winne  v.  Reynolds,  6  Paige  (N.  Y.),  407. 


824  MABKETABLE  TITLE   TO   REAL  ESTATE. 

tion  of  the  court  or  by  the  purchaser  himself,  who  thereupon  is  sub- 
rogated  to  the  right  of  the  incumbrancer.7  But  specific  perform- 
ance by  the  purchaser  cannot  be  compelled  if  the  incumbrance 
exceed  the  unpaid  purchase  money,8  unless,  of  course,  the  purchaser 
assumed  the  payment  of  the  incumbrance  as  part  of  the  considera- 
tion of  the  contract. 

Of  course  if  the  contract  stipulates  that  there  shall  be  a  deduc- 
tion from  the  purchase  money  if  the  title  to  a  part  of  the  premises 
should  fail,  the  purchaser  cannot,  in  the  absence  of  fraud,  impo- 
sition or  gross  mistake,  upon  failure  of  title  to  part  of  the  premises, 
demand  a  rescission  of  the  contract  as  to  the  other  part.9  The  pur- 
chaser cannot  refuse  to  complete  the  contract  because,  before  the 
execution  of  a  conveyance,  a  part  of  the  premises  had  been  taken 
in  condemnation  proceedings.  He  becomes  in  equity  the  owner  of 
the  land  as  soon  as  the  contract  of  sale  is  made,  and  entitled  to 
compensation  from  those  at  whose  instance  the  land  was  con- 
demned.10 A  partial  restriction  upon  the  purchaser's  power  of 
alienation,  such  as  a  pre-emption  right  of  purchase  in  the  original 
owner  for  a  specified  time,  or  a  fine  in  case  of  alienation,  does  not 
justify  the  purchaser  in  refusing  specific  performance,  but  dimin- 
ishes the  value  of  the  property,  and  entitles  him  to  a  compensa- 
tion.11 If  the  purchaser  has  waived  his  right  to  rescind  the  con- 
tract where  the  title  is  defective,  he  cannot  refuse  to  pay  the  pur- 
chase money,  with  compensation  or  abatement  as  to  that  portion  of 
the  premises  to  which  the  vendor  has  no  title.12  He  will  be  deemed 
to  have  waived  that  right  if  he  purchased  with  knowledge  that  the 
title  to  a  portion  of  the  premises  was  defective.13  , 

In  the  English  practice  the  conditions  of  sale  usually  provide 
that  any  description,  mistake  or  error  in  the  particulars,  shall  not 
avoid  the  sale,  but  shall  be  the  subject  of  compensation;  and  the 
conditions  usually  fix  the  mode  in  which  the  amount  of  compensa- 

7  Ante,  §§  245,  305.  The  existence  of  a  water  tax  on  the  premises  is  no 
ground  for  rescission.  The  purchaser  must  take  the  title  with  an  abatement 
of  the  purchase  money.  Cogswell  v.  Boehm,  5  N.  Y.  Supp.  67. 

'Hinckley  v.  Smith,  51  N.  Y.  21. 

•Harris  v.  Granger,  4  B.  Mon.   (Ky.)   369. 

14Kuhn  v.  Freeman,  15  Kans.  423. 

"Winne  v.  Reynolds,  6  Paige   (N.  Y.),  407. 

"Hancock  v.  Bramlett,  85  N.  C.  393. 

"Kimmel  v.  Scott,    (Neb.)    52  N.  W.  Rep.  371. 


BIGHT  OF  THE  VENDOR COMPENSATION  FOR  DEFECTS.       825 

tion  shall  be  determined.  A  condition  that  no  compensation  shall 
be  allowed  the  purchaser  for  defects,  applies  only  to  trivial  errors.14 

We  have  seen  that  when  a  purchaser  elects  to  complete  the  con- 
tract with  compensation  for  a  part  to  which  title  cannot  be  ob- 
tained, compensation  is  to  be  decreed  according  to  the  relative  and 
not  the  average  value  of  the  part  lost.15  No  reason  is  perceived 
why  the  same  rule  should  not  apply  when  he  is  required  to  complete 
the  contract  with  compensation.  Where,  however,  the  vendor  sold 
2,000  acres  and  included  in  his  conveyance  39  acres  to  which  he 
had  no  title  and  which  was  not  included  within  the  boundaries  of 
the  premises  sold,  it  was  held  that  the  purchase  money  must  be 
abated  according  to  the  contract  price  per  acre,  and  not  according 
to  the  relative  value  of  the  thirty-nine  acres." 

Where  the  right  of  the  vendor  to  require  the  purchaser  to  take 
the  title  with  compensation  for  defects,  exists,  it  cannot  be  enforced 
in  an  action  to  recover  the  purchase  money,  or  for  a  breach  of  the 
contract,  or  in  any  other  proceeding  at  law.  At  law  the  contract  is 
an  entirety  and  can  only  be  enforced  as  such.  The  remedy  of  the 
vendor  is  exclusively  in  equity." 

§  326.  EXCEPTIONS  TO  THE  RULE.  (1)  The  rule  that  the 
purchaser  may  be  compelled  to  accept  the  title  with  compensation, 
applies  only  where  the  title  is  good  as  to  part,  and  bad  as  to  part. 
If  the  objection  go  to  the  whole  title,  he  can  in  no  case  bo  required 
to  accept  the  property  with  indemnity  against  eviction.18  (2)  The 

"Dart  Vend.  &  P.  (5th  ed.)  134.  Whitemore  v.  Whitemore,  L.  R.,  8  Eq. 
603.  The  eases  in  which  the  common  condition  of  sale  requiring  the  pur- 
chaser to  tako  the  property  with  compensation  for  defects  do  not  apply  have 
been  thus  classified  by  Mr.  Dart  (V.  &  P.  [5th  ed.]  138)  :  1.  Where  the  prop- 
erty is  not  of  the  same  description  as  it  appears  to  be  in  the  particulars  of 
sale.  2.  Where  the  property,  as  described  is  not  identical  with  that  intended 
to  be  sold.  3.  Where  a  material  part  of  the  property  described  has  no  exist- 
ence, or  cannot  be  found :  or  where  no  title  can  be  shown  to  it.  4.  Where  the 
misdescription  is  upon  a  point  material  to  the  due  enjoyment  of  the  prop- 
erty. 5.  Where  the  misdescription  as  to  quantity  is  so  serious  that  it  is  no 
longer  a  fit  subject  for  compensation.  0.  Where  the  misdescription  is  of  such 
a  nature  that  the  amount  of  the  compensation  cannot  be  estimated. 

"Ante,  §  170. 

'•Stockton  v.  Union  Oil  Co.,  4  W.  Va.  73. 

"  1  Sugd.  Vend.  (8th  Am.  ed.)  417  (314).     Shaw  v.  Vincent,  64  X.  C.  690. 

ul  Sugd.  Vend.  (8th  Am.  ed.)  573.  Balmanno  v.  Lumley.  1  Ves.  &  Bea. 
224:  Paton  v.  Brebner,  1  Bligh,  42;  Nouaille  v.  Flight.  7  Beav.  521;  Blake  v. 
Phinn,  3  C.  K.  070. 


826  MAEKETABLE  TITLE  TO  REAL  ESTATE. 

contract  cannot  be  specifically  enforced  in  part  and  rescinded  in 
part.  It  must  either  be  rescinded  in  whole,  or  specific  performance 
decreed  with  compensation  for  an  inconsiderable  part  to  which 
the  title  fails.19  This  exception  does  not  apply  where  the  purchase 
is  of  several  lots  at  auction,  and  the  titles  to  some  are  bad.20  The 
purchaser  must  take  a  conveyance  of  those  to  which  the  title  is 
good,  unless  the  lots  to  which  the  title  is  bad  are  necessary  to  the 
enjoyment  of  the  rest.21  If  a  person  purchases  at  an  auction  sev- 
eral distinct  though  adjacent  parcels  of  land,  separately  described 
in  the  advertisement  of  sale  and  separately  sold,  signing  a  separate 
memorandum  of  the  purchase  of  each  which  contains  the  terms  of 
the  sale,  the  purchase  of  each  parcel  constitutes  a  distinct  contract, 
and  the  inability  of  the  vendor  to  make  title  or  perform  the  con- 

19  Bailey  v.   James,   11   Grat.    (Va.)    468;    62   Am.   Dec.    659.     Jopling  v. 
Dooley,  1  Yerg.  (Tenn.)  289;  24  Am.  Dec.  450;  Reed  v.  Noe,  9  Yerg.  (Tenn:f 
283;  Galloway  v.  Bradshaw,  5  Sneed   (Tenn.),  70.     McKinney  v.  Watts,  3  A. 
K.  Marsh.   (Ky.)    268.    Bryan  v.  Read,  1  Dev.  &  B.  Eq.  (N.  C.)   78.     Wilson 
v.  Brumfield,  8  Bl.  (Itid.)   146;  Johnson  v.  Houghton,  19  Ind.  359.     Rector  v. 
Price,  1  Mo.  373.    Christian  v.  Stanley,  23  Ga.  26.    Yoke  v.  Gregg,  9  Tex.  85. 
Ankeny  v.  Clark,  138  U.  S.  345. 

20  Van  Epps  v.  Schenectady,   12  Johns.   (N.  Y.)   436.     Poole  v.  Shergold,  2 
Bro.  C.  C.  118.     Stoddard  v.  Smith,  5  Binney  (Pa.),  355.     Foley  v.  Crow,  37 
Md.  51.     Waters  v.  Travis,  9  Johns.   (N.  Y.)  450.     If  the  title  fail  to  one  of 
two  purchased  lots,  both  of  which  were  necessary  to  the  purchaser's  uses,  he 
cannot  be  compelled  to  take  the  other  lot.     Shriver  v.  Shriver,  86  N.  Y.  575. 
In  Osborne  v.  Breman,  1  Des.   (S.  C.)   485,  several  lots  adjoining  each  other 
were  sold  separately  at  auction.    Title  to  one  of  the  principal  lots  failed,  but 
there  being  no  evidence  that  this  lot  was  the  principal  inducement  to  the 
purchase,  the  purchaser  was  compelled  to  complete  the  contract.    If  two  dis- 
tinct portions  of  land  are  sold  as  one  tract,  a  good  title  to  both  must  be 
shown  in  order  to  sustain  an  action  against  the  purchaser  for  refusing  to  com- 
plete the  contract.    Barton  v.  Bouvien,  1  Phila.  (Pa.)  523.     When  a  tract  of 
land,  divided  into  city  lots,  is  sold  in  separate  parcels,  a  defect  in  the  title  to 
one  lot  or  parcel  does  not  affect  the  sale  of  the  other  parcels,  but  a  defect  in 
the  title  to  any  one  of  several  lots  sold  as  one  parcel,  avoids  the  sale  of  the 
entire  parcel.    Mott  v.  Mott,  68  N.  Y.  246.    A  clause  in  a  contract  for  the  sale 
of  lots  abutting  on  a  street  shown  on  a  map  of  a  subdivision,  provided  that 
if  title  failed  to  any  of  the  lots  the  contract  should  be  deemed  severable,  and 
the  compensation  should  abate  pro  tanto.     Held,  not  applicable  to  a  defect 
consisting  in  the  want  of  dedication  of  the  street  to  public  uses.    Cleveland 
v.  Bergen  B.  &  I.  Co..  (N.  J.  Eq.)  55  Atl.  117. 

Z1 1  Sugd.  Vend.  (8th  Am.  ed.)  484.  Emerson  v.  Hiles,  2  Taunt.  38;  James 
v.  Shore,  1  Star.  426;  Baldry  v.  Parker,  2  B.  &  C.  37;  Roots  v.  Dormer,  4 
B.  &  Ad.  77;  Seaton  v.  Booth,  4  Ad.  &  El.  528. 


BIGHT  OF  THE  VENDOB COMPENSATION  FOB  DEFECTS.       827 

tract  as  to  one  of  the  parcels  will  not  relieve  the  purchaser  from 
his  obligation  to  pay  the  purchase  price  and  accept  a  conveyance 
of  the  other  parcels.22  (3)  The  purchaser  cannot  be  required  to 
complete  the  contract  with  compensation  or  abatement  of  the  pur- 
chase money  if  the  title  has  failed  to  a  considerable  portion  of  the 
property,23  or  to  a  part  which  is  indispensable  to  the  due  enjoyment 
and  intended  purposes  of  the  residue.24  But  a  failure  of  title  to 
an  inconsiderable  or  dispensable  portion  of  the  property,28  or  the 
existence  of  a  trifling  charge  or  incumbrance  upon  the  premises,** 

aWells*v.  Day,  124  Mass.  38. 

a  1  Sugd.  Vend.  (8th  Am.  ed.)  479;  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1182; 
2  Kent  Com.  475.  Boyce  v.  Grundy,  3  Pet.  (U.  S.)  210.  Hayes  v.  Skidmore, 
27  Ohio  St.  331.  Burwell  v.  Sollock,  (Tex.  Civ.  App.)  32  S.  W.  Rop.  844. 
Newman  v.  Maclin,  5  Hayw.  (Tenn.)  241:  Roed  v.  Noe,  9  Yerg.  (Tenn.)  282. 
where  the  title  to  twenty-five  acres  out  of  fifty  was  defective.  Cunningham 
v.  Sharp,  11  Humph.  (Tenn.)  116.  Terrell  v.  Farrar,  1  Miss.  417,  where  title 
to  only  half  of  the  property  purchased  could  be  had.  In  Morgan  v.  Brast,  34 
W.  Va.  332;  12  S.  E.  Rep.  710,  the  purchaser  was  compelled  to  accept  title 
with  compensation  for  a  deficiency  of  20  acres  out  of  254,  average  value.  The 
purchaser  cannot  be  required  to  take  the  title  where  the  vendor  had  previously 
sold  the  mineral  rights  in  the  land  to  another.  Eversole  v.  Eversole,  27  Ky. 
Law  Rep.  385;  85  S.  W.  Rep.  186;  Davis  v.  Watson,  89  Mo.  App.  15. 

24  Authorities  cited.  Ante,  p.  822,  n.  1.  Parham  v.  Randolph.  5  Miss.  435; 
35  Am.  Dec.  403.  Jackson  v.  Ligon,  3  Leigh  ( Va.) ,  161,  where  the  part  to  which 
title  failed  was  separated  from  the  rest  by  a  public  road.  A  familiar  illustration 
of  this  exception  is  the  case  in  which  a  wharfinger  bought  a  wharf  and  a  jetty 
protecting  it,  and  it  afterwards  appeared  that  the  jetty  was  liable  to  be  removed 
by  the  municipal  authorities.  It  was  held  that  he  could  not  be  compelled  to 
take  the  wharf  with  compensation  for  the  loss  of  the  jetty.  Peers  v.  Lambert, 
7  Beav.  546.  So,  also,  in  Keating  v.  Price.  58  Md.  532,  where  a  purchase  of 
twenty  acres  was  made  in  order  to  get  possession  of  an  acre  and  a  half  at  a 
particular  point  as  a  factory  site.  Title  to  the  acre  and  a  half  having  failed, 
the  purchaser  was  not  required  to  accept  the  remainder  with  compensation. 
Where  the  vendor  of  a  house  and  lot  was  unable  to  make  title  to  a  small  strip 
of  land  between  the  house  and  the  highway,  from  which  passers-by  could  look 
in  at  the  window,  it  was  held  that  the  purchaser  could  not  be  compelled  to 
accept  the  residue  with  compensation.  1  Sugd.  Vend.  478.  Perkins  v.  Ede, 
16  Beav.  193. 

*Tomlinson  v.  Savage,  6  Ired.  Eq.  (N.  C.)  430,  where  a  deficiency  of  17% 
out  of  350  acres  was  deemed  immaterial.  Reynolds  v.  Vance,  4  Bibb  (Ky.), 
213;  Buck  v.  McCaughtry,  5  T.  B.  Mon.  (Ky.)  216,  deficiency  of  50  acres  out 
of  800  deemed  immaterial. 

24  Fry  Sp.  Perf.  (3d  Am.  ed.)  §§  1188,  1196.  In  Guynet  v.  Mantel,  4  Duer 
(N.  Y.),  86,  the  purchase  price  of  the  property  was  $50,000,  and  the  purchaser 
took  possession  with  notice  that  there  was  an  outstanding  incumbrance  on  the 
property  of  $1,000.  Specific  performance  by  the  vendor,  with  compensation  or 


828  MARKETABLE  TITLE   TO   REAL  ESTATE. 

is  no  ground  for  refusing  specific  performance  with  compensation. 
Compensation  cannot  be  decreed  if  there  be  no  accurate  and  certain 
means  of  determining  the  amount  of  compensation  to  be  allowed,*7 
such  for  example  as  in  the  case  of  a  building  restriction  binding 
the  purchaser,  or  a  restriction  as  to  the  uses  to  which  the  premises 
shall  be  put.18  The  encroachment  of  the  walls  of  a  building  a 
couple  of  inches  on  the  building  line  of  a  street  has  been  held  no 
case  for  compensation,  and  the  purchaser  was  excused  from  perform- 
ing the  contract. °  On  the  other  hand,  a  deficiency  of  fourteen 
inches  in  a  frontage  of  seventy-five  feet  was  held  a  case  for  com- 
pensation and  not  for  rescission,  the  fourteen  inches  not  being 
indispensable  to  the  due  enjoyment  and  intended  use  of  the  prem- 
ises." Obviously,  the  question  whether  the  purchaser  must  take 
the  title  with  compensation,  or  may  rescind  the  contract,  depends 
upon  the  circumstances  of  each  particular  case.  Specific  perform- 
ance is  a  matter  of  grace,  and  will  neither  be  enforced  in  one  case 

allowance  for  the  incumbrance,  was  decreed.  A  deficiency  of  twenty-one  acres 
of  land  in  a  tract  cf  400  acres,  not  material  to  the  enjoyment  of  the  rest,  may 
be  compensated,  and  affords  no  ground  for  rescission.  Cotes  v.  Raleigh,  1  T. 
B.  Mon.  (Ky. )  164.  A  small  and  trifling  charge  on  the  land  for  the  main- 
tenance of  a  division  fence,  being  the  subject  of  compensation,  is  no  ground 
for  resisting  specific  performance.  Keating  T.  Gunther,  10  X.  Y.  Supp.  (X. 
Y.)  734, 

"In  Evans  T.  Kingsberry,  2  Rand.  (Va.)  120;  14  Am.  Dec.  779,  a  husband 
sold  an  estate  in  which  the  wife  had  a  life  interest  in  case  she  survived  him. 
but  in  which  he  had  the  entire  interest  in  case  he  survived.  The  purchaser 
refused  to  take  the  property,  and  specific  performance  with  compensation  was 
denied,  the  court  saying  that  the  contingency  of  the  wife  surviving  the  hus- 
band, and  in  that  event  becoming  entitled  to  a  moiety  of  the  land  for  her  life, 
was  such  a  defect  of  title  as  could  not  be  compensated,  since  there  was  no 
rule  by  which  the  compensation  could  be  estimated.  But  see  ante,  f  190. 
There  is  no  means  of  ascertaining  the  present  value  of  an  estate  devised  to  a 
widow  for  life  but  defeasible,  except  as  to  dower,  upon  her  re-marriage.  Scheu 
v.  Lehning.  31  Hun  (N.  Y.),  183. 

*  Adams  v.  Valentine.  33  Fed.  Rep.  1    (X.  Y.). 

"Smitbers  v.  Steiner,  34  X.  Y.  Supp.  678.  See,  also,  the  following  en- 
croachment cases,  in  which  the  purchaser  was  excused:  McPherson  v.  Schade. 
28  X.  Y.  Supp.  659;  8  Misc.  Rep.  424,  one  and  one-half  inches:  Smith  v. 
McCool,  22  Hun  (X.  Y.),  595,  five  inches;  Arnstein  v.  Burroughs,  27  X.  Y. 
Supp.  958,  two  inches:  Bowie  v.  Brahe,  4  Duer  (X.  Y.).  676.  one  and  seven- 
eighths  inches.  See,  also.  King  v.  Knapp.  59  X.  Y.  462;  Stokes  v.  Johnson. 
57  X.  Y.  673;  Webster  v.  Trust  Co..  145  X.  Y.  275;  39  X.  E.  Rep.  964. 

"Kelly  v.  Brower,  7  X.  Y.  Snpp.  752. 


EIGHT  OF  THE  VENDOB COMPENSATION  FOR  DEFECTS.       829 

nor  denied  in  another  unless  equity  and  good  conscience  so  re- 
quires. It  is  incumbent  upon  the  purchaser  to  show  that  Ihe  part 
to  which  title  has  failed  was  material  to  the  proper  use  and  enjoy- 
ment of  the  rest,  or  formed  a  special  inducement  to  the  purchase.31 
(4)  The  purchaser  cannot  be  compelled  to  accept  an  estate  of  a 
different  tenure  from  that  which  he  purchased;  thus,  if  he  pur- 
chases a  freehold,  he  cannot  bo  compelled  to  accept  a  lesser  estate 
as  a  copyhold  or  a  leasehold.32 

Where  the  contract  provided  that  the  vendors  should  begin  and 
prosecute  to  final  judgment  a  suit  to  recover  possession  of  a  part 
of  the  premises,  the  purchase  money  to  be  abated  in  case  of  inabil- 
ity to  recover  in  such  suit,  and  the  vendor  failed  to  bring  the  suit, 
specific  performance  with  abatement  of  the  purchase  money,  at  the 
suit  of  the  vendors,  was  refused.33  (5)  Where  the  vendor  has 
only  a  joint  interest  or  interests  in  the  estate,  he  cannot  compel 
the  purchaser  to  accept  the  shares  he  actually  has  with  a  deduction 
for  those  he  does  not  own.34  In  some  cases,  however,  the  purchaser 
has  been  compelled  to  take  a  different  interest  from  that  which 
the  vendor  undertook  to  sell.35  If  the  purchase  be  from  tenants 
in  common  and  one  of  them  die,  the  survivors  cannot  compel  the 
purchaser  to  accept  their  shares  unless  he  can  procure  the  share 
of  the  deceased  tenant.36  (6)  The  purchaser  cannot  be  required 
to  take  the  title  with  compensation  for  defects  in  a  case  where  the 
vendor  has  been  guilty  of  fraud  in  the  sale.37  (7)  If  the  vendor 
turns  the  purchaser  out  of  possession,  he  thereby  rescinds  the  con- 
tract and  cannot  afterwards  require  a  specific  performance  with 
compensation  for  defects.38 

"Keating  v.  Price,  58  Md.  532. 

18  1  Sugd.  Vend.  (8th  Am.  ed.)  461. 

MWold  v.  Newgaard,  123  Iowa,  233;  98  N.  W.  Rep.  640. 

Ml  Sugd.  Vend.  (8th  Am.  ed.)  480  (316). 

"Id.  457   (299). 

SM  Sugd.  Vend.  (8th  Am.  ed.)  480;  1  Story  Eq.  Jur.  §  778.  Atty.-G«n.  v. 
Day,  1  Ves.  218. 

"Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1192.  Harris  v.  Granger,  4  B.  Mon.  (Ky.) 
3(59.  Isaacs  v.  Skrainka,  95  Mo.  517;  8  S.  W.  Rep.  427.  But  see  Coffee  T. 
Xewsom,  2  Oa.  442,  a  case  apparently  at  variance  with  the  foregoing  authori- 
ties. 

38  1  Sugd.  Vend.  (8th  Am.  ed.)  523;  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  1193. 
Knntchbull  v.  Orueber,  1  Ves.  Jr.  224. 


830  MARKETABLE  TITLE   TO   REAL  ESTATE. 

§  327.  INDEMNITY  AGAINST  FUTURE  LOSS.  As  a  general 
rule  a  purchaser  can  neither  require  nor  be  compelled  to  accept  a 
conveyance  with  indemnity  against  possible  loss  in  the  future  from 
a  defect  in  the  title  to  the  estate.39  An  apparent  exception  to  the 
rule  that  he  cannot  demand  an  indemnity  exists  in  those  cases  in 
which  he  is  permitted  to  detain  a  part  of  the  purchase  money  as  an 
indemnity  against  the  possible  consummation  of  an  inchoate  right 
of  dower  in  the  premises.40  But  it  is  believed  that  there  is  no  well- 
considered  case  in  which  the  purchaser  has  been  forced  to  take  a 
defective  title  with  indemnity  against  possible  loss  from  the  defect. 

39 1  Sugd.  Vend.  (8th  Am.  ed.)  467,  475;  Fry  Sp.  Perf.  (3d  Am.  ed.)  §§ 
1190,  1245;  Batten  Sp.  Perf.  67,  Law  Lib.  171.  Balmano  v.  Lumley,  1  Ves.  & 
Bea.  224;  Aylett  v.  Ashton,  1  Myl.  &  Cr.  105;  Patten  v.  Brabner,  1  Bligh.  42, 
C6;  Ridgway  v.  Gray,  1  Mac.  &  G.  109;  Powell  v.  So.  Wales  R.  Co.,  1  Jur. 
(N.  S.)  773.  Bryan  v.  Read,  1  Dev.  &  Bat.  Eq.  (N.  C.)  78,  86.  Wilson  v. 
Zajicek,  (Tex.  Civ.  App.)  36  S.  W.  Rep.  1080.  Barickman  v.  Kuykendall.  t» 
Bl.  (Ind.)  21,  where  the  guardian  of  a  minor,  one  of  several  heirs  selling  an 
estate,  offered  the  purchaser  a  bond  with  security,  conditioned  that  the  minor 
should  convey  when  he  came  of  age.  In  Rife  v.  Lybarger,  49  Ohio  St.  422; 
31  N.  E.  Rep.  768,  in  a  decree  for  specific  performance  against  a  purchaser, 
provision  was  made  for  his  indemnity  against  an  old,  uncanceled  mortgage. 
This  is  an  interesting  case.  The  purchaser  bought  during  the  fever  and  ex- 
citement of  a  "  boom  "  in  city  property,  but  finding  a  mortgage  on  the  prem- 
ises refused  to  complete  the  purchase.  The  "  boom "  subsided,  and  within 
four  weeks  after  the  contract  should  have  been  completed  the  value  of  the 
property  shrank  nearly  one-half.  Releases  from  the  personal  representatives 
and  heirs  of  the  mortgagee  were  procured  and  filed  by  the  vendor,  but  the 
purchaser  still  objected  to  the  title  on  the  ground  that  the  right  to  enforce 
<he  mortgage  might  be  outstanding  in  an  assignee.  Specific  performance  by 
him  was  decreed,  with  indemnity  against  this  possibility.  The  case  seems 
at  variance  with  the  general  rule  established  by  the  authorities  above.  In 
Simpson  v.  Hawkins,  1  Dana  (Ky. ),  303,  a  case  in  which  the  contract  had 
been  executed  by  a  conveyance  with  covenants  for  title,  it  was  held  that  the 
grantor  might  be  required  to  provide  an  indemnity  against  the  possible  re- 
opening of  a  decree  against  a  non-resident  adverse  claimant. 

40  Ante,  §  199-.  Young  v.  Paul,  10  N.  J.  Eq.  415;  64  Am.  Dec.  456.  In  Jack- 
son v.  Edwards,  7  Paige  Ch.  (N.  Y.)  386,  a  purchaser  at  a  partition  sale 
declined  to  complete  the  contract  on  the  ground  that  the  wife  of  one  of  the 
parceners  had  a  contingent  right  of  dower  in  the  premises.  But  the  court 
held  that  under  the  laws  of  New  York  the  value  of  that  interest  might  be 
ascertained  by  means  of  the  life  tables  and  commuted  at  a  certain  sum  to  be 
abated  from  the  purchase  money,  and  invested  under  the  direction  of  the  court 
for  the  benefit  of  the  wife.  But,  obviously,  this  is  a  case  in  which  the  pur- 
chaser is  compelled  to  take  the  title  with  an  abatement  of  the  purchase  money, 
and  not  a  mere  indemnity. 


BIGHT  OF  THE  VENDOR COMPENSATION   FOR  DEFECTS.       831 

Hence,  it  has  been  frequently  held  that  a  purchaser  cannot  be  com- 
pelled to  accept  title  with  indemnity  against  an  inchoate  right  of 
dower  in  the  premises.41  Of  course,  if  the  contract  provide  for 
indemnity  it  may  be  required.42 

41  Ante,  §  199.  Peters  v.  Delaplaine,  49  N.  Y.  362.  Trimmer  v.  Gorman,  129 
N.  C.  161 ;  39  S.  E.  Rep.  804.  See,  also,  Prescott  v.  Trueman,  4  Mass.  629;  3  Am. 
Dec.  249;  Shearer  v.  Ranger,  22  Pick.  (Mass.)  447.  Smith  v.  Cornell,  32  Me.  126. 
Holmes  v.  Holmes,  12  Barb.  (N.  Y.)  137.  Henderson  v.  Henderson,  13  Mo. 
152.  Contra,  Obernyce  v.  Obertz,  17  Ohio,  71.  Manson  v.  Brimfield  Mfg.  Co., 
3  Mason  (C.  C.),  855.  Blair  v.  Rankin,  11  Miss.  440. 

"Aylett  v.  Ashton,  1  Myl.  A  Cr.  105;  Ridgway  v.  Gray,  1  Mac.  A  G.  109; 
Milligan  v.  Cooke,  16  Ves.  1;  Walker  v.  Barnes,  3  Mad.  247  (13?)  ;  Pateruon 
v.  Long,  6  Beav.  598 ;  Ross  v.  Boards,  8  Ad.  &  El.  290. 


RESCISSION  BY  PROCEEDINGS  IN  EQUITY  WHERE  THE  CONTRACT 
HAS  BEEN  EXECUTED. 

CHAPTER  XXXIV. 

OF  THE  REMEDY  BY  INJUNCTION  AGAINST  THE  COLLECTION  OF 
THE  PURCHASE  MONEY. 

GENERAL  OBSERVATIONS.     §  328. 
FRAUD  ON  THE  PART  OF  THE  GRANTOR.     §  329. 
WANT  OF  OPPORTUNITY  TO  DEFEND  AT  LAW.     §  330. 
INSOLVENCY  OR  NON-RESIDENCE  OF  GRANTOR.     §  331. 
WHERE  THE  ESTATE  IS  INCUMBERED.     §  332. 
FORECLOSURE  OF  PURCHASE-MONEY  MORTGAGE.     §  333. 
WHERE  THERE  ARE  NO  COVENANTS.     §  334. 
TEMPORARY  AND  PERPETUAL  INJUNCTIONS.     §  335. 
RESUME.     §  336. 

WHERE  THERE  IS  NO  PRESENT  RIGHT  TO  RECOVER  SUBSTAN- 
TIAL DAMAGES  FOR  BREACH  OF  THE  COVENANTS.     §  337. 

§  328.  GENERAL  OBSERVATIONS.  The  jurisdiction  of  equity 
to  restrain  the  collection  of  the  purchase  money  where  the  title  has 
failed  is  frequently  invoked,  either  upon  the  ground  that  there  is  no 
adequate  remedy  at  law,  or  that  the  plaintiff  has  not  had  or  cannot 
have  an  opportunity  to  avail  himself  of  that  remedy.  The  pur- 
chaser may  have  been  deprived  of  his  defense  at  law  by  fraud, 
accident  or  mistake ;  or  the  facts  constituting  his  defense  may  not 
have  transpired  until  after  judgment  was  recovered  against  him; 
as  where  he  was  evicted  after  judgment  for  the  purchase  money. 
Or  he  may  have  had,  for  other  reasons,  no  opportunity  of  making 
a  defense  at  law ;  as  where  the  vendor  seeks  to  foreclose  a  deed  of 
trust  or  other  security  for  the  purchase  money,  in  the  enforcement 
of  which  no  legal  proceedings  are  required.1  So  far  as  the  cove- 
nants of  warranty,  of  for  quiet  enjoyment  are  concerned,  there  can 
be  no  doubt  of  the  adequacy  of  the  remedy  at  law  as  soon  as  a  right 
of  action  upon  them  occurs.  In  contemplation  of  law  no  wrong 
arises  out  of  a  mere  failure  of  the  title  without  an  eviction  or  dis- 
turbance of  the  possession  where  these  are  the  only  covenants 

1  As  to  the  remedy  by  injunction,  where  the  contract  is  executory,  see 
ante,  §  520. 


EEMEDT  BY  INJUNCTION COLLECTION  OF  PUBCHASE  MONET.     833 

taken;  consequently  there  being  no  wrong  there  is  no  remedy. 
After  a  breach  of  these  covenants  has  occurred,  the  remedy  is  am- 
ple and  complete.  But  with  respect  to  the  covenants  of  seisin  and 
against  incumbrances  a  different  view  may  prevail ;  for  while  the 
right  of  action  upon  them  is  complete  as  soon  as  they  are  made, 
if  the  title  be  outstanding  in  a  stranger  or  the  estate  be  encum- 
bered, unless  he  has  been  evicted  in  the  one  case  or  has  discharged 
the  incumbrance  in  the  other,  he  has,  according  to  the  rule  gener- 
ally prevailing  in  the  United  States,  no  right  to  recover  substantial 
damages  for  the  breach,  and,  consequently,  nothing  to  offer  in 
defense  of  an  action  for  the  purchase  money.  In  that  respect, 
therefore,  the  remedy  at  law  upon  those  covenants,  while  existing, 
would  seem  inadequate;2  and  the  covenantee  has  in  some  cases 
been  permitted  to  enjoin  the  collection  of  the  purchase  money  until 
the  defendant  should  remove  an  incumbrance  from  the  land  ;3  and, 

1  There  are  dicta  in  several  cases  which  would  tend  to  establish  a  different 
principle  from  that  stated  here,  namely,  that  the  remedy  at  law  upon  the  cove- 
nant of  seisin  is  complete  and  adequate  immediately  upon  the  execution  of  the 
conveyance  and  covenant  if  the  vendor  have  no  title,  because  there  is  then  a 
breach  of  that  covenant  for  which  the  covenantee  may  recover  damages;  and 
that  the  remedy  at  law  upon  the  covenant  of  warranty  is  incomplete  and 
inadequate  because  there  can  be  no  recovery  of  damages  until  an  eviction 
occurs.  Ingram  v.  Morgan,  4  Humph.  (Tenn.)  66;  40  Am.  Dec.  626;  Baird  T. 
Goodrich,  5  Heisk.  (Tenn.)  20;  Leird  v.  Abernethy,  10  Heisk.  (Tenn.)  636. 
Roger  v.  Kane,  5  Leigh  (Va.),  606,  608.  It  is  submitted  with  diffidence  that 
these  cases  are  open  to  criticism  in  two  particulars:  First,  in  assuming  that 
substantial  damages  for  a  breach  of  the  covenant  of  seisin  may  be  recovered 
where  there  has  been  no  eviction  or  disturbance  of  the  possession.  This  is 
directly  opposed  to  the  weight  of  American  authority.  Rawle  Covts.  for  Title 

(5th  ed. ),  ch.  9.  And,  second,  in  declaring  that  the  remedy  at  law  on  the 
covenant  of  warranty  is  incomplete  because  no  damages  can  be  recovered  until 
eviction.  In  contemplation  of  law,  so  far  as  this  covenant  is  concerned,  want 
of  title  in  the  grantor  constitutes  no  injury  to  the  covenantee  unless  it  results 
in  an  eviction;  and  until  eviction,  there  being  no  wrong  at  law,  there  is  no 
remedy.  To  say  then  that  the  remedy  at  law  before  eviction  is  inadequate  is 
to  produce  the  illogical  result,  that  the  remedy  at  law  is  inadequate  in  a  case 
in  which  there  is  neither  wrong  nor  remedy.  It  is  true  that  in  such  a  case 
there  may  be  room  for  the  "  quia  timet  "  jurisdiction  of  equity,  but  this  is 
founded  upon  the  possibility  of  an  injury  to  the  complainant  in  the  future 
and  not  upon  a  present  wrong  which  requires  compensation  or  redress.  2 
Story  Eq.  (13th  ed.)  §  826.  The  foregoing  observations,  ao  far  as  they  relate 
to  the  covenant  of  seisin,  appear  to  be  in  accord  with  the  opinion  of  Mr.  Rawle 

(Covts.  for  Title  [5th  ed.],  §  378). 
•Post,  §  332. 

53 


834  MARKETABLE  TITLE  TO   SEAL  ESTATE. 

in  others,  upon  a  complete  and  undoubted  failure  of  the  title  and 
insolvency  of  the  vendor,  has  been  held  entitled  to  a  perpetual 
injunction,  upon  condition  that  he  reconvey  the  premises  to  the 
grantor.4 

The  right  of  the  covenantor  to  an  injunction  against  proceedings 
to  collect  the  purchase  money  may  be  conveniently  considered  with 
respect  to  the  following  circumstances: 

1.  Where  the  covenantor  made  fraudulent  representations  re- 
specting the  title. 

2.  Where  there  is  a  present  right  to  recover  substantial  damages 
for  breach  of  the  covenants  for  title,  and  there  has  been  no  oppor- 
tunity to  defend  at  law. 

3.  Where  there  has  been  no  such  breach  of  the  covenants  for  title 
as  to  give  a  present  right  to  recover  substantial  damages  at  law, 
but  suit  is  being  actually  prosecuted  or  threatened  by  an  adverse 
claimant  or  incumbrancer,  and  the  covenantor  is  either  insolvent 
or  a  non-resident. 

4.  WThere  there  is  no  present  right  to  recover  substantial  damages 
on  the  covenants,  but  there  is  a  clear  outstanding  title  in  a  stranger. 

§  329.  FRAUD  ON  THE  PART  OF  THE  GRANTOR.  1.  Where 
the  covenantor  was  guilty  of  fraud  with  respect  to  the  title.  Actual 
fraud  by  the  vendor  in  a  contract  for  the  sale  of  lands,  unless 
waived  by  the  vendee,  seems  to  be  at  all  times  ground  for  enjoining 
the  collection  of  the  purchase  money,  whether  there  has  or  has  not 
been  a  breach  of  the  covenants  for  title.5  Indeed,  where  there  is 
such  fraud  an  injunction  will  be  granted,  though  there  are  po 
covenants  for  title.6  The  same  rule  applies  in  a  case  of  mistake 
as  to  the  premises  sold  and  conveyed.7  And  inasmuch  as  a  court 

*  Jackson  v.  Norton,  6  Cal.  187;  5  Cal.  262.  This  is  the  rule  in  Virginia, 
evcept  that  no  reconveyance  of  the  premises  is  required  and  no  importance 
seems  to  h?ve  been  given  to  the  solvency  of  the  covenantor  as  respects  the 
right  to  the  injunction.  Post,  §  337. 

"High  on  Injunctions  (3d  ed.):  289;  Rawle  Covts.  (5th  ed.)  §  372.  Fitch 
v.  Polke,  7  Bl.  (Ind.)  565;  Heed  v.  Tioga  Mfg.  Co.,  66  Ind.  21. 

•In  Houston  v.  Hurley,  2  Del.  Cn.  2*8.  the  purchaser,  through  the  fraudu- 
lent representations  of  the  vendor,  had  accepted  a  conveyance  without  cove- 
nants for  title,  and  was  permitted  to  enjoin  proceeding;  to  collect  the  purchase 
money,  until  the  vendor  should  perfect  the  title. 

'Spurr  v.  Benedict,  99  Mass.  463,  where  the  conveyance  (quit  claim)  did 
not  include  lands  which  were  pointed  out  to  the  buyer  as  belonging  to  *h/» 


BEMEDY  BY  INJUNCTION COLLECTION  OF  PTJBCHASE  MONEY.     835 

of  equity  is  always  open  for  the  abrogation  and  rescission  of  a 
contract  procured  by  fraud,  it  would  seem  that  the  collection  of 
the  purchase  money  in  such  case  might  be  enjoined,  whether  the 
facts  alleged  would  or  would  not  avail,  or  have  availed,  the  cove- 
nantee  at  law,  as  a  defense  to  an  action  for  the  purchase  money. 
It  has  been  held,  however,  that  fraud  is  no  ground  for  an  injunc- 
tion to  stay  an  action  on  an  obligation  for  the  purchase  money 
not  under  seal,  since  the  fraud  may  be  set  up  in  defense  of  an 
action,  and  the  remedy  at  law  in  that  respect  is  complete.8  If  this 
be  true  no  reason  is  perceived  why  the  same  rule  would  not  apply 
in  those  States  in  which  the  defendant  is  permitted  to  set  up 
equitable  defenses  in  an  action  on  a  sealed  instrument.  But  these 
decisions  do  not  appear  to  have  been  generally  followed  in  the 
American  States.  The  fact  that  the  purchaser  has  a  remedy  at 
law  by  action  to  recover  damages  caused  by  the  vendor's  deceit, 
has  been  held  no  ground  for  refusing  an  injunction  to  stay  the 
collection  of  the  purchase  money.9  If  the  purchaser  sets  up  fraud 
as  a  defense  in  an  action  for  the  purchase  money  and  fails,  he 
cannot  afterwards  avail  himself  of  the  same  matter  in  equity  by 
way  of  injunction  against  the  judgment  so  obtained.10 

§  330.  WANT  OF  OPPORTUNITY  TO  DEFEND  AT  LAW. 
2.  Where  there  is  a  present  right  to  recover  substantial  damages 
for  breach  of  the  covenants  for  title,  and  there  has  been  no  oppor- 

vendor,  but  to  which  he  had  no  title,  and  which  were  not  included  in  the  con- 
veyance. 

'  Barkhamstead  v.  Case,  5  Conn.  528;  13  Am.  Dec.  92;  Moore  v.  Ellsworth, 
3  Conn.  403. 

•Ransom  v.  Shuler,  8  Ired.  Eq.  (N.  C.)  307,  the  court  saying:  "Admitting 
that  he  might  recover  damages  in  an  action  at  law  for  the  deceit,  yet  that 
would  not  impair  his  right  to  equitable  relief,  since  that  and  the  legal  remedy 
are  not  of  the  same  nature,  but  the  latter  may  be,  and  generally  is,  that  the 
vendor  cannot,  with  a  good  conscience,  coerce  the  payment  of  the  whole  pur- 
chase money,  and  leave  the  vendee  to  pursue  a  personal  action  at  law  for  the 
uncertain  damages  which  a  jury  might  assess  for  the  fraud  in  selling  what 
did  not  belong  to  the  vendor;  but,  on  the  contrary,  the  vendee  has  the  right 
of  withholding  so  much  of  the  purchase  money  (because  to  that  extent  the 
consideration  has  failed)  as  a  security  in  his  own  hands  against  the  loss  im- 
pending over  him."  Compare  dictum  in  Hammatt  v.  Emerson,  27  Me.  309. 

10  Johnson  v.  Jones,  IS  Sm.  &  M.  (Miss.)  580;  Thomas  v.  Phillips,  4  Sm.  & 
M.  (Mies.)  358.  Cf.  Allen  v.  Hopson,  1  Freem.  Ch.  (Miss.)  276. 


836  MARKETABLE  TITLE  TO  EEAL  ESTATE. 

tunity  to  defend  at  law.  If  the  application  for  an  injunction' be 
made  before  judgment  and  the  bill  show  facts  which  may  be 
availed  of  as  a  defense  to  the  action  by  way  of  recoupment,  coun- 
terclaim or  set-off,  there  is  no  ground  for  the  interposition  of 
equity,  and  the  injunction  should  be  denied.11  So,  also,  if  the 
application  be  made  after  judgment,  and  the  facts  presented  would 
have  been  a  complete  defense  at  law.12  But  if  by  fraud,  accident 
or  mistake  the  covenantee  has  been  deprived  of  his  opportunity  to 
defend  at  law,  or  if  no  such  opportunity  existed  or  exists,  as  where 
the  right  to  damages  arose  after  the  judgment  had  been  recovered, 
or  where  the  covenantor  seeks  to  enforce  a  security  for  the  pur- 
chase money,  without  legal  proceedings,  then,  and  in  all  such  cases, 
the  covenantee  may  be  enjoined  from  any  further  proceeding, 

"Hopper  v.  Lutkin,  3  Gr.  Ch.  (N.  J.)  149..  In  Tone  v.  Brace,  Clarke  Ch. 
(N.  Y.)  291,  the  action  was  to  recover  rent  for  the  year  1839  on  a  lease  ter- 
minating in  1842.  The  lessee  prayed  an  injunction  on  the  ground  that  he  had 
been  evicted  in  January,  1840,  and  asking  to  have  his  damages  set  off  against 
the  rent.  The  injunction  was  dissolved  on  the  ground  that  the  remedy  on  the 
covenants  in  the  lease  was  complete. 

"Nelms  v.  Prewitt,  37  Ala.  389;  Wray  v.  Furniss,  27  Ala.  471.  Shipp  Y. 
Wheless,  33  Miss.  647.  The  contract'was  executory  in  this  case,  but  the  prin- 
ciple remains  the  same.  Ricker  v.  Pratt,  48  Ind.  73.  Allen  v.  Thornton,  51 
Ga.  594;  Desvergers  v.  Willis,  58  Ga.  388;  21  Am.  Rep.  289.  Kibler  v.  Cure- 
ton,  Rich.  Eq.  Cas.  (S.  C.)  143.  In  Woodruff  v.  Bunce,  9  Paige  Ch.  (N.  Y.) 
443;  38  Am.  Dec.  559,  it  seems  to  have  been  assumed  that  if  the  covenantee 
had  been  evicted  and  the  covenantor  is  insolvent,  the  former  will  at  any  time 
be  awarded  an  injunction  to  stay  the  collection  of  the  purchase  money.  This 
is  true  if  the  eviction  occurred  after  judgment,  and  that,  too,  whether  the 
vendor  was  or  was  not  insolvent.  If,  however,  the  eviction  occurred  before 
judgment,  and  the  covenantee  might  have  set  up  that  defense  by  way  of  re- 
coupment or  counterclaim,  but  neglected  to  do  so,  there  might  be  a  grave  doubt 
as  to  his  right  to  involve  the  covenantor  in  the  expense  of  a  chancery  suit, 
notwithstanding  the  insolvency  of  the  latter.  And  especially  would  the  right 
to  an  injunction  against  an  assignee  of  the  covenantor  seem  doubtful  under 
these  circumstances.  Indeed,  the  insolvency  of  the  covenantor  seems  imma- 
terial to  the  question  of  the  right  to  an  injunction  to  stay  the  collection  of  the 
purchase  money,  except  in  those  cases  in  which  no  present  right  of  action  on 
the  covenant  of  warranty  exists,  and  the  complainant  is  invoking  the  "  quia 
timet  "  jurisdiction  of  equity.  If  the  covenantee  should  be  evicted  from  the 
premises  after  the  recovery  of  a  judgment  against  himself  for  the  purchase 
money,  he  may  enjoin  the  judgment  if  the  covenantor  or  his  estate  is  in- 
solvent and  the  defense  of  failure  of  title  could  not*have  been  made  in  the 
action  for  the  purchase  money.  Wray  v.  Furniss,  27  Ala.  471. 


EEMEDY  BY  INJUNCTION COLLECTION  OP  PUECHASE  MONEY.     837 

either  to  collect  his  judgment  or  to  enforce  such  security.11  So, 
also,  where  at  the  time  of  the  judgment  the  covenantee  was  ig- 
norant of  the  facts  which  would  have  constitued  a  defense  to  the 
action."  It  may  be  observed  generally,  however,  that  an  injunc- 
tion to  stay  the  collection  of  the  purchase  money,  whether  before 
or  after  judgment,  will  not  be  granted  unless  the  complainant 
ahows  that  for  some  reason  his  legal  remedy  on  the  covenants  for 
title  will  be  unavailing.15 

§  331.  INSOLVENCY  OB  NON-RESIDENCE  OF  THE  GRANTOR. 
3.  Where  there  has  been  no  such  breach  of  the  covenants  for  title 
as  to  give  a  present  right  to  recover  substantial  damages  at  law, 
but  suit  is  being  actually  prosecuted  or  threatened  by  an  adverse 
claimant  or  incumbrancer,  and  the  covenantor  is  either  insolvent 
or  a  non-resident.  Strictly  speaking,  it  cannot  be  said  that  there  is 
no  remedy  at  law  on  the  covenants  for  title  in  these  cases,  for  in 
contemplation  of  law  nothing  has  occurred  of  which  the  covenantee 
can  complain  as  respects  the  covenants  of  warranty  and  for  quiet 
enjoyment;  nor  can  there  be  any  ground  for  complaint  at  law 
until  an  eviction  occurs.16  But  the  covenantor  being  insolvent  or 
a  non-resident,  j  udgment  for  the  covenantee  will  be  worthless  when 
the  right  of  action  at  law  shall  have  accrued.  Hence  arises  the 
jurisdiction  in  equity  for  a  bill  of  injunction  "  quia  timet,"  that  is, 
"  because  he  fears  some  future  probable  injury  to  his  rights  or 
interests,  and  not  because  an  injury  has  already  occurred  which 
requires  any  compensation  or  other  relief."1  Accordingly,  in 
many  cases,  injunctions  against  proceedings  to  collect  the  pur- 
chase money  have  been  granted  upon  allegations  of  the  actual 

"  Kingsbury  v.  Milner,  69  Ala.  502.  Luckett  v.  Triplett,  2  B.  Mon.  ( Ky. ) 
39.  Coster  v.  Monroe  Mfg.  Co.,  1  Gr.  Ch.  (N.  J.)  476. 

"Fitch  v.  Polke,  7  Bl.  (Ind.)  565,  the  court  saying:  "We  are  satisfied  that 
this  is  a  proper  case  for  the  interference  of  a  court  of  equity.  It  appears 
that  the  complainant  was  deceived  by  the  false  representations  of  the  vendor 
as  to  his  title,  and  that  he  remained  ignorant  of  the  fact  that  the  vendor  had 
not  a  good  title  until  after  the  rendition  of  the  judgment  at  law.  This  excuse 
for  not  defending  at  law  was  sufficient  to  authorize  the  interference  of  a  court 
of  equity."  Citing  Williams  v.  Lee,  3  Atk.  223.  Simpson  v.  Hart,  1  Johns. 
Ch.  (N.  Y.)  98. 

"Haggin  v.  Oliver,  5  J.  J.  M.  (Ky.)  237. 

"Ante,  §  144. 

"2  Story  Eq.  (13th  ed.)  §  826. 


838  MARKETABLE  TITLE   TO   REAL  ESTATE. 

pendency18  or  threatened  prosecution19  of  a  suit  by  an  adverse 
claimant  against  the  covenantee,  and  that  the  covenantor,  because 
of  insolvency20  or  non-residence,21  cannot  be  compelled  to  respond 

18  High  on  Injunctions  (3d  ed.),  §  400;  Rawle  Covts.  (5th  ed.)   §§  372,  375. 
The  earliest  case  in  which  this  doctrine,  or  at  least  a  part  of  it,  was  applied 
was  that  of  Johnson  v.  Gere,  2  Johns.  Ch.  (N.  Y.)  546,  decided  by  Chancellor 
KENT  in  1817.    The  authority  of  this  case  has  been  denied  in  New  York  and 
elsewhere,  but  it  is  to  be  observed  that  it  was  neither  alleged  in  the  bill  nor 
shown  that  the  covenantor  was  a  non-resident  or  insolvent,  nor  that  for  any 
other  reason,  the  complainant's  remedy  upon  the  covenants,  when  it  should 
accrue,  would  be  insufficient  for  his  protection.     There  are  many  cases  which 
decide  that  an  injunction  against  proceedings  to  collect  the  purchase  money 
will  not  be  [ranted  where  the  covenantee  has  not  been  disturbed  in  his  pos- 
session by  an  adverse  claimant,  but  few  which  refuse  the  injunction  where  it 
was  shown  that  the  covenantor  was  a  non-resident  or  insolvent,  and  that  suit 
by  the  adverse  claimant  was  being  prosecuted  or  threatened.     Legett  v.  Mc- 
Carty,  3  Edw.  Ch.  (N.  Y.)   126,  obiter;  Edwards  v.  Bodine,  26  Wend.  (N.  Y.) 
114,  obiter.     Shannon  v.   Marselis,  Saxt.    (N.  J.)    413,  425;    Van   Riper  v. 
Williams,  1  Green  Ch.   (N.  J.)  407;  Van  Waggoner  v.  McEwen,  1  Green  Ch. 
(N.  J.)   412;   Green  v.  Whipple,  1  Beas.  Ch.    (N.  J.)   50;   Coster  v.  Monroe 
Mfg.  Co.,  1  Green  Ch.   (N.  J.)  467;  Jaques  v.  Esler,  3  Gr.  Ch.   (N.  J.)   462; 
Hile  v.  Davison,  5  C.  E.  Gr.  (N.  J.)  228.    Fehrle  v.  Turner,  77  Ind.  530,  over- 
ruling Strong  v.  Downing,  34  Ind.  300. 

19  Harding  v.  Commercial  Loan  Co.,  84  111.  251,  260,  obiter. 

"Warvelle  on  Vendors,  937;  Rawle  Covts.  (5th  ed.)  §  380.  Waltou  v.  Bon- 
ham,  24  Ala.  513;  Wray  v.  Furniss,  27  Ala.  471.  In  Magee  v.  McMillan,  30 
Ala.  420,  relief  was  denied  on  the  ground  that  insolvency  of  the  vendor  waa 
not  alleged,  Heflin  v.  Phillips,  (Ala.)  11  So.  Rep.  729;  Frank  v.  Riggs,  93 
Ala.  252;  9  So.  Rep.  359.  Gilham  v.  Walker,  135  Ala.  459;  33  So.  Rep.  537. 
Whittey  v.  Ldde,  139  Ala.  177;  35  So.  Rep.  705.  Hoppes  v.  Cheek,  21  Ark. 
585;  Busby  v.  Treadwell,  24  Ark.  458;  Brooks  v.  Moody,  25  Ark.  452.  Young 
v.  McCormick,  6  Fla.  368.  Allen  v.  Thornton,  51  Ga.  594.  Fehrle  v.  Turner, 
77  Ind.  530 ;  Wimberg  v.  Schwegeman,  97  Ind.  530,  where  it  was  also  held  that 
the  insolvency  must  be  averred  in  the  bill.  Morrison  v.  Beckwith,  4  T.  B. 
Mon.  (Ky.)  73;  16  Am.  Dec.  136;  Vance  v.  House,  5  B.  Mon.  (Ky.)  540; 
Taylor  v.  Lyons,  2  Dana  (Ky.),  276;  Rawlins  v.  Timberlake,  6  T.  B.  Mon. 
(Ky.)  225;  Sin-pson  v.  Hawkins,  3  Dana  (Ky.),  303.  It  was  held  that  insol- 
vency wag  no  ground  for  the  injunction  unless  the  covenantee  filed  his  bill 
quid  timet,  requiring  all  persons  having  adverse  interests  to  assert  or  re- 
linquish the  same.  Jones  v.  Waggoner,  7  J.  J.  Marsh.  (Ky.)  144;  Hatcher 
v.  Andrews,  5  Bush  (Ky.),  662.  Johnson  v.  Wilson,  77  Mo.  6391.  In  Jones 
v.  Stanton,  11  Mo.  433,  the  injunction  was  granted  though  the  insolvency  of 
the  covenantor  was  doubtful,  and  though  no  suit  against  the  covenantee  had 
been  prosecuted  or  threatened.  But  the  injunction  was  to  be  dissolved  if  the 
vendor  should  give  a  bond  with  security  to  indemnify  the  complainant  if  he 
should  sustain  any  loss  from  the  defective  title.  Mitchell  v.  McMullen,  59  Mo. 
252.  Miller  v.  Avery,  2  Barb.  Ch.  (N.  Y.)  582;  Woodruff  v.  Bunce,  9  Paige 


KEMEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONEY.     839 

in  damages  for  a  breach  of  his  covenant  when  it  shall  have  oc- 
curred. It  has  been  held,  however,  that  the  insolvency  of  the 
covenantor  must  be  alleged  in  the  bill  as  ground  for  the  injunc- 

(N.  Y.)  Ch.  443;  38  Am.  Dec.  559.  Young  v.  Butler,  1  Head  (Tenn.),  640; 
Ingram  v.  Morgan,  4  Humph.  (Tenn.-)  66;  40  Am.  Dec.  626;  Barnett  v.  Clark, 
5  Sneed  (Tenn.),  436;  Baird  v.  Goodrich,  5  Heisk.  (Tenn.)  24;  Merriman  v. 
Norman,  9  Heisk.  (Tenn.)  270;  Leird  v.  Abernethy,  10  Heisk.  (Tenn.)  626; 
Saint  v.  Taylor,  12  Heisk.  (Tenn.)  488;  Land  Company  v.  Hill,  3  Pick. 
(Tenn.)  589;  11  S.  W.  Rep.  797.  McElya  v.  Hill,  105  (Tenn.)  319;  59  S.  W. 
Rep.  1025.  Land  Co.  v.  Hill,  87  (Tenn.)  598;  11  S.  W.  Rep.  797.  Matthews 
v  Crowder,  (Tenn.)  69  S.  W.  Rep.  779.  Stockton  v.  Cook,  3  Munf.  (Va.)  68; 
5  Am.  Dec.  504.  The  Virginia  practice  is,  however,  much  more  favorable  to 
the  covenantee  than  the  rule  stated  in  the  text.  See  post,  §  C37.  In  Patton 
v.  Taylor,  7  How.  (U.  S.)  132,  the  insolvency  of  the  covenantee  was  held  no 
ground  for  an  injunction  against  the  collection  of  the  purchase  money.  Little 
consideration  appears  to  have  been  given  the  question,  and  the  authorities 
cited  merely  decide  that  a  covenantee  who  has  not  been  disturbed  in  his  pos- 
session, cannot  resist  the  payment  of  the  purchase  money  on  the  ground  that 
the  title  is  defective.  The  grounds  upon  which  the  injunction  is  granted 
where  the  vendor  is  insolvent,  were  forcibly  stated  by  Judge  NICHOLAS  in  his 
dissenting  opinion  in  the  case  of  Simpson  v.  Hawkins,  1  Dana  (Ky.),  318,  a* 
follows :  "  It  is  too  late  now  in  this  court  to  question  the  doctrine,  that  where 


"Clarke  v.  Cleghorn,  6  Ga.  225;  McGhee  v.  Jones,  10  Ga.  127.  In  this  case 
there  had  been  no  conveyance,  but  the  vendor  had  executed  a  bond  for  title. 
Vance  v.  Hense,  5  B.  Mon.  (Ky.)  540;  Wiley  v.  Fitzpatrick,  3  J.  J.  Marsh. 
(Ky.)  583;  Hatcher  v.  Andrews,  5  Bush  (Ky.),  561.  In  Cummins  v.  Boyle, 
1  J.  J.  Marsh.  (Ky.)  480,  it  was  held  that  the  removal  of  one  of  several 
covenantors  from  the  State  was  no  ground  for  an  injunction  unless  it  should 
appear  that  the  remedy  against  the  others  would  be  unavailing.  Wofford  v. 
Ashcraft,  47  Miss.  641.  Green  v.  Campbell,  2  Jones  Eq.  (N.  C.)  447.  The 
oovenantee  will  not  be  driven  to  seek  redress  in  the  courts  of  another  State, 
when  a  less  circuitous  and  a  better  remedy  can  be  given  in  the  courts  of 
his  own  State.  Richardson  v.  Williams,  3  Jones  Eq.  (N.  C.)  119.  It  seems 
that  the  injunction  will  not  be  granted  if  the  sole  ground  of  the  application 
is  the  non-residency  of  the  covenantor  if  he  have  sufficient  property  within 
the  State  to  answer  his  liability  on  the  covenants.  The  rule  was  so  qualified 
in  Green  v.  Campbell,  2  Jones  Eq.  (N.  C.)  446.  In  Falls  v.  Dickey,  6  Jones 
Eq.  (N.  C.)  258,  the  bill  was  adjudged  fatally  defective  in  not  averring  that 
the  non-resident  had  no  property  within  the  State.  It  must  be  admitted  that 
the  ownership  of  property  within  the  State  constitutes  a  very  doubtful  se- 
curity for  damages,  the  right  to  recover  which  may  not  accrue  for  many 
years  after  the  payment  of  the  purchase  money  has  been  enforced,  or  not  until 
the  vendor  has  disposed  of  that  property.  In  Minnesota  the  mere  non- 
residence  of  the  covenantor  has  been  held  insufficient  to  take  a  case  out  of  the 
rule  that  the  covenantee  cannot  on  failure  of  the  title  rescind  the  contract  and 
recover  back  the  purchase  money.  Miller  v.  Miller,  47  Minn.  546;  50  N.  W. 
Rep.  612. 


840  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

tion.12  Upon  a  principle  similar  to  that  on  which  a  court  of  equity 
enjoins  the  collection  of  the  purchase  money  by  an  insolvent  cove- 
nantor when  the  title  has  failed,  it  will  in  a  like  case  restrain  him 
from  transferring  negotiable  securities  for  the  purchase  money  to 
an  innocent  parity.23  It  seems  that  if  the  title  to  a  portion  of  the 
land  fail,  and  that  portion  be  not  material  or  essential  to  the  en- 

a  vendee  has  received  a  conveyance  with  warranty,  and  been  let  into  posses- 
sior,  lit  may  nevertheless  enjoin  the  collection  of  the  purchase  money,  when 
the  vendor  becomes  insolvent,  and  it  turns  out  that  he  has  no  title,  or  that  hi» 
title  is  defective.  That  doctrine  has  been  incidentally  and  directly  recognized 
in  too  many  cases  to  be  now  shaken,  even  if  it  were  originally  wrong.  But 
it  is  right  in  itself,  and  clearly  deducible  from  the  general  principle  that  sus- 
tains every  injunction  quia  timet.  .  .  .  It  is  said  (quoting  from  th« 
opinion  of  Judge  UNDEBWOOD),  'no  judge  can  repose  with  confidence  and  rest 
his  opinion  upon  the  events  of  futurity.  Events  that  have  transpired  and  not 
those  to  come,  are,  in  general,  the  sole  and  exclusive  subjects  for  the  judiciary 
to  act  upon.'  Admitting  all  this,  still  its  direct  application  is  not  perceived. 
In  granting  the  purchaser  relief  the  chancellor  acts  upon  no  undivulged  or 
imtranspired  event.  He  restrains  the  collection  of  the  purchase  money  because 
of  the  peril  in  which  the  purchaser  would  otherwise  be  placed  from  the  want 
or  imperfection  of  title  in  the  vendor.  The  want  of  title  and  insolvency  of 
the  vendor  are  ascertained  facts;  the  peril  to  the  purchaser  thence  ensuing 
is  an  existing  evil  which  the  vendor  is  bound  to  remove  before  he  can  equitably 
and  conscientiously  proceed  to  the  collection  of  the  purchase  money.  This  is 
not  acting  upon  a  state  of  the  case  that  may  arise,  but  upon  one  that  already 
exists.  It  is  not  a  remedy  for  breach  of  warranty,  or  anything  equivalent  or 
similar  thereto;  but  an  act  of  "preventive  justice"  on  the  part  of  the 
court,  the  full  effectuation  of  which,  under  a  due  attention  to  the  interest 
of  both  parties,  requires  a  rescission  of  the  contract.  It  is  a  mere  exception 
to  the  general  rule  that  after  taking  a  conveyance  the  purchaser  will  not  be 
allowed  to  rescind  for  want  or  defect  of  title.  As  to  the  uncollected  purchase 
money,  it  places  the  purchaser  in  nearly  the  same  attitude  as  if  the  convey- 
ance had  not  been  executed.  A  perpetual  injunction,  or  at  least  for  so  long 
as  the  purchaser  is  in  danger,  is  what  his  case  requires,  and  all  that  it  re- 
quires. But  as  it  would  be  unjust  for  him  to  withhold  the  purchase  money 
and  continue  the  enjoyment  of  the  land,  in  which  there  is  a  chance  be  may 
never  be  disturbed,  the  interest  of  the  vendor  requires  the  court  to  go  a  step 
further,  rescind  the  contract,  and  make  the  purchaser  restore  the  title  and 
possession."  The  majority  of  the  court  in  this  case  were  of  opinion  that  mere 
insolvency  of  the  grantor,  when  no  suit  against  the  grantee  was  being  prose- 
cuted or  threatened  by  the  real  owner,  did  not  warrant  a  perpetual  injunction 
to  stay  the  collection  of  the  purchase  money. 

MHoppes  v.  Cheek,  21  Ark.  585.  If  the  grantee  be  constructively  evicted  by 
being  unable  to  get  possession  from  an  adverse  claimant,  he  may  detain  the 
purchase  money  without  alleging  non-residence,  fraud  or  insolvency  on  the 
part  of  the  grantor.  Baird  v.  Laevison,  (Ky.)  15  S.  W.  Rep.  252. 

a  McDunn  v.  Des  Moines,  34  Iowa,  467. 


XEMEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONEY.     841 

joyment  of  the  rest,  there  is  no  ground  for  an  injunction  and  a 
rescission  of  the  contract  in  toto,  but  the  covenantee  is  entitled  to 
an  abatement  of  the  purchase  money  pro  tanto,**  or  to  compensa- 
tion for  the  portion  lost.26 

The  bill  must  also  allege  facts  showing  a  clear  outstanding  title 
in  a  stranger,  and  that  suit  is  being  prosecuted  or  threatened,  or 
that  there  is  imminent  danger  from  the  adverse  title.  Facts  which 
merely  show  that  the  title  is  doubtful,  or  is  not  such  as  the  pur- 
chaser could  be  required  to  take  upon  a  bill  for  specific  perform- 
ance, constitute  no  ground  for  an  injunction  to  stay  the  collection 
of  the  purchase  money  after  the  purchaser  has  accepted  a  convey- 
ance with  covenants  for  title.26  It  has  also  been  said  that  mere 
threats  of  suit  by  an  adverse  claimant  will  not  justify  an  injunc- 
tion, and  that  it  must  appear  that  the  suit  is  being  actually  prose- 
cuted before  relief  will  be  granted,27  except  in  cases  where  the 
adverse  claimants  as  well  as  the  vendor  and  purchaser  are  before 
the  court,  thereby  making  possible  the  adjustment  of  the  rights  of 
all  parties  in  the  same  suit.28 

24  Simpson  v.  Hawkins,  1  Dana  (Ky.),  303. 

"Key  v.  Jennings,  66  Mo.  356.  In  Withers  v.  Morell,  3  Edw.  Ch.  (N.  Y.) 
560,  it  was  held  that  in  a  proceeding  to  foreclose  a  purchase-money  mortgage, 
the  purchaser  could  not  avail  himself  of  failure  of  the  title  to  a  portion  of 
the  land,  as  a  defense,  but  must  file  his  bill  in  equity  to  enjoin  proceedings 
at  law  on  his  bond,  if  the  vendor  should  seek  to  hold  him  for  a  deficiency. 

"Latham  v.  Morgan,  1  Sin.  &  M.  Ch.  (Miss.)  611.  Simpson  v.  Hawkins,  3 
Dana  (Ky.),  303.  Woodruff  v.  Bunce,  9  Paige  Ch.  (N.  Y.)  443;  38  Am.  Dec. 
559;  Hoag  v.  Rathbun,  Clarke  Ch.  (N.  Y.)  12,  where  it  was  said  that  insol- 
vency was  ground  for  the  injunction  if  the  danger  of  eviction  was  certain  or 
even  imminent.  It  has  been  held,  however,  that  in  a  suit  to  enjoin  a  judgment 
on  the  ground  of  defective  title,  an  answer  which  merely  alleges  that  the 
defendant's  title  is  good,  without  setting  out  facts  showing  a  good  title,  is  in- 
sufficient. Boyer  v.  Porter,  1  Overt.  (Tenn.)  258;  Moredock  v.  Williams,  1 
Overt.  (Tenn.)  325;  Moore  v.  Cook,  4  Hayw.  (Tenn.)  84.  It  is  not  easy  to 
reconcile  these  cases  with  those  which  hold  that  the  burden  is  on  the  com- 
plainant to  allege  and  prove  a  bad  title  in  the  vendor.  Grantland  v.  Wight. 
5  Munf.  (Va.)  295. 

"Rawle  Covts.  (5th  ed.)  §  381,  citing  Worthington  v.  Curd,  22  Ark.  284; 
Wiley  v.  Fitzpatrick,  3  J.  J.  Marsh.  (Ky.)  583.  In  the  last  case  it  appears, 
however,  that  the  injunction  was  granted,  the  covenatnor  being  practically 
insolvent  and  a  non-resident,  though  no  suit  was  being  prosecuted  by  the  ad- 
verse claimant. 

MId.   (5th  ed.)   §  382.     Morrison  v.  Beckwith,  4  T.  B.  Mon.  (Ky.)  73:   10 
Am.  Dec.  136;  Davis  v.  Logan,  5  B.  Mon.  (Ky.)  341.    Here  the  covenantee  had 


842  MARKETABLE  TITLE   TO   EEAL  ESTATE. 

If  the  application  for  injunction  be  made  to  restrain  proceed- 
ings at  law  before  judgment,  it  is  usually  granted  only  upon  con- 
dition that  the  claimant  shall  confess  judgment  at  law.  The  ob- 
ject of  this  rule  is  to  prevent  suits  for  injunction  having  no  other 
purpose  than  to  delay  proceedings  at  law.29  Where  the  circum- 
stances of  the  case  are  such  as  to  entitle  the  purchaser  to  an  injunc- 
tion against  proceedings  to  collect  the  purchase  money,  it  may  be 
maintained  against  all  who  claim  under  the  vendor  as  well  as 
against  the  vendor  himself,30  except,  of  course,  the  purchaser  of  a 
negotiable  security  before  maturity,  for  value,  and  without  notice 
of  equities  between  the  original  parties. 

The  rule  that  a  grantee  in  undisturbed  possession  of  the  prem- 
ises, may  enjoin  the  collection  of  the  purchase  money  upon  a  com- 
plete failure  of  the  title,  where  the  grantor  is  insolvent,  is  equi- 
table and  just  provided  the  grantee  be  required  to  reconvey  the 
premises  to  the  grantor.  But  it  would  be  obviously  inequitable  to 
permit  the  grantee  to  keep  both  the  purchase  money  and  the 
estate,  unless  the  injunction  were  merely  temporary,  and  it  ap- 
peared that  the  objection  to  the  title  could  probably  be  removed 
by  the  grantor.  A  perpetual  injunction  against  the  collection  of 
the  purchase  money  would  be  in  substance  a  rescission  of  the  con- 
tract, and  it  is  a  cardinal  doctrine  of  equity  that  a  contract  will  not 

been  sued  in  dower  by  the  widow  of  the  covenantor,  and  he  had  filed  a  cross- 
bill against  the  heirs  and  executor  of  the  covenantor  asking  compensation  for 
breach  of  warranty.  No  question  as  to  the  right  to  an  injunction,  or  to  detain 
purchase  money  was  involved.  In  Denny  v.  Wickliffe,  1  Met.  (Ky.)  216,  226, 
the  contract  was  executory,  but  specific  performance  by  conveying  to  the  pur- 
chaser having  been  decreed,  he  was  considered  to  occupy  the  position  of  a 
grantee,  and  it  was  held  that  he  could  only  have  relief  from  the  defective  title, 
by  bringing  the  adverse  claimants  before  the  court.  Citing  Simpson  v. 
Hawkins,  1  Dana  (Ky.),  303;  Taylor  v.  Lyons,  2  Dana  (Ky.),  279. 

"Anon.,  1  Vern.  120;  1  Madd.  Ch.  132.  Warwick  v.  Nowell,  1  Leigh  (Va.), 
96.  Nelson  v.  Owen,  3  Ired.  Eq.  (N.  C.)  175,  which  was  an  injunction  against 
proceedings  to  collect  a  land  bond,  and  where  it  was  said  that  the  granting  of 
injunctions  was  liable  to  much  abuse,  as  they  are  usually  obtained  upon  the 
ex  parte  statements  of  the  applicant,  and  often  employed  to  delay  the  admin- 
istration of  justice;  and  that  to  remedy  this  evil,  the  complainant  must,  as  a 
general  rule,  agree  that  judgment  at  law  may  be  entered  for  the  plaintiff. 

*°  Gunn  v.  Thornton,  49  Ga.  380,  where  a  judgment  creditor  of  the  vendor 
was  seeking  to  garnishee  the  purchase  money.  Fillingin  v.  Thornton,  49  Ga. 
384. 


REMEDY  BY  INJUNCTION COLLECTION  OF  PUBCHASE  MONEY.     843 

be  rescinded  without  returning  to  each  party  the  consideration 
which  passed  from  him  to  the  other. 

§  332.  Where  the  estate  is  encumbered.  In  many  cases,  in- 
junctions against  proceedings  to  collect  the  purchase  money  have 
been  granted  where  an  incumbrance  on  the  premises  exists,  ap- 
parently without  regard  to  the  imminency  of  proceedings  to 
enforce  the  incumbrance,  or  the  non-residency  or  insolvency  of  the 
covenantor.31  As  to  actual  or  threatened  proceedings  against  the 
covenantee,  there  would  seem  to  be  grounds  for  a  distinction  be- 
tween defects  of  title  and  incumbrances.  The  former  may  never 
be  asserted,  while  the  enforcement  of  securities  for  the  payment 
of  money  is  almost  inevitable.  As  to  non-residence  and  insolvency 
of  the  covenantor,  even  though  the  covenantee's  case  be  not 
strengthened  by  these  conditions,  it  would  unquestionably  be  a 
great  hardship  if  he  might  be  compelled  to  pay  money,  which  in 
all  probability  he  would  in  a  short  time  be  entitled  to  recover  back 
as  damages.  If  the  covenantee  pay  money  to  remove  incumbrances 
on  the  land,  he  may  enjoin  the  collection  of  the  purchase  money 
to  that  extent,32  provided  he  has  had  no  opportunity  to  set  up  that 

"Buell  v.  Tate,  7  Bl.  (Ind.)  55;  Addleman  v.  Mormon,  7  Bl.  (Ind.)  32, 
where  it  was  held  that  a  suit  to  enjoin  collection  of  the  purchase  money  until 
the  covenantee  should  remove  the  incumbrance  on  the  premises  was  in  affirm- 
ance of  the  contract,  and  that  consequently  the  suit  could  be  maintained  with- 
out tendering  a  reconveyance  of  the  land,  or  offering  to  account  for  rents  and 
profits.  Arnold  v.  Carl,  18  Ind.  339;  Ricker  v.  Pratt,  48  Ind.  73.  Hoke  v.  Jones, 
33  W.  Va.  501,  obiter.  Dayton  v.  Dusenbury,  25  N.  J.  Eq.  110,  where  there 
were  unsatisfied  judgments  binding  the  premises;  Union  Nat.  Bank  v.  Pinner, 
25  N.  J.  Eq.  495,  tax  liens;  Stiger  v.  Bacon,  29  N.  J.  Eq.  442,  prior  mortgage; 
White  v.  Stretch,  7  C.  E.  Gr.  76,  sewer  assessment;  Woodruff  v.  Depue,  14 
N.  J.  Eq.  168,  prior  mortgage.  Henderson  v.  Brown,  18  Grant  Ch.  (Can.) 
79;  Lovelace  v.  Harrington,  27  Grant  Ch.  (Can.)  178.  In  Alabama,  the  right 
to  enjoin  the  collection  of  the  purchase  money  where  there  has  been  a  breach 
of  the  covenant  against  incumbrances  is  restricted  to  cases  in  which  it  appears 
that  the  covenantee  is  insolvent.  McLemore  v.  Mabson,  20  Ala.  127.  citing 
Parks  v.  Brooks,  16  Ala.  529;  Cullum  v.  Branch  Bank,  4  Ala.  21;  37  Am.  Dec. 
725.  So,  also,  in  Mississippi:  Wofford  v.  Ashcrnft,  47  Miss.  641. 

"Champlin  v.  Dotson,  13  Sin.  &  M.  (Miss.)  553;  53  Am.  Dec.  102. 
Detroit  R.  Co.  v.  Griggs,  12  Mich.  51.  In  Rawle  Covts.  (5th  ed.)  642,  mention 
is  made  of  a  class  of  cases  which  refuse  the  injunction  unless  the  covenantee 
has  paid  off  the  incumbrance,  referring  to  section  378  of  that  work.  Refer- 
ence to  that  section,  however,  shows  that  the  rule  is  limited  to  cases  in  which 
the  purchaser  bought  with  notice  of  the  incumbrance. 


844  MARKETABLE  TITLE  TO  REAL  ESTATE. 

defense  at  law,  but  he  will  be  allowed  only  the  amount  actually 
paid  by  him  to  remove  the  incumbrance.  He  cannot  buy  in  in- 
cumbrances  and  set  up  an  adverse  title  under  them  against  his 
vendor.33 

But  while  an  outstanding  mortgage  or  other  incumbrance  is 
ground  for  an  injunction  against  the  collection  of  the  purchase 
money  where  the  purchaser  holds  under  a  conveyance  with  a  cove- 
nant against  incumbrances,  it  is  no  ground  for  a  rescission  of  the 
contract.  The  injunction  will  be  dissolved  if  the  vendor  removes 
the  incumbrance,  or  reduces  it  to  a  sum  not  exceeding  the  unpaid 
purchase  money.  The  purchaser  cannot  tender  a  reconveyance  and 
deprive  the  vendor  of  the  right  to  perfect  the  title.34  Neither  is 
delay  in  removing  the  incumbrance  ground  for  rescinding  the  con- 
tract, where  the  grantee  has  never  been  disturbed  in  his  possession, 
and  the  enforcement  of  the  incumbrance  is  barred  by  the  Statute 
of  Limitations.35 

§  333.  Foreclosure  of  purchase-money  mortgage.  We  have 
already  seen  that  want  of  title  in  the  vendor  is  no  ground  for  re- 
sisting the  enforcement  of  a  purchase-money  mortgage  or  other 
security,  when  no  personal  judgment  against  the  purchaser  for  a 
deficiency  is  sought.  In  such  a  case  an  injunction,  as  a  general 
rule,  will  not  be  granted  to  restrain  a  foreclosure  of  the  mortgage/6 
The  fact  that  the  purchaser  has  paid  a  considerable  portion  of  the 
purchase  money,  seems  to  place  him  on  no  better  ground,  with 
respect  to  his  right  to  an  injunction.  Where,  however,  the  con- 
tract is  executory,  it  will  be  remembered  that  the  purchaser,  on 
failure  of  the  title,  is,  in  some  of  the  States,  permitted  to  detain 
the  premises,  if  necessary,  to  reimburse  him  for  what  he  has  al- 

"•Champlin  v.  Dotson,  13  Sm.  &  M.  (Miss.)  553 1  53  Am.  Dec.  102. 

84  Oldfield  v.  Stevenson,  1  Ind.  153. 

^Egan  v.  Yeaman,  (Tenn.)  46  S.  W.  Rep.  1012. 

**  Ante,  §  184,  and  cases  there  cited.  Cartwright  v.  Briggs,  41  Ind.  184, 
citing  Hubbard  v.  Chappel,  14  Ind.  601;  Hume  v.  Dessar,  29  Ind.  112;  Rogers 
v.  Place,  29  Ind.  577 ;  Hanna  v.  Shield,  34  Ind.  84.  In  Wade  v.  Percy,  24  La. 
Ann.  173,  it  was  held  that  the  vendor  might  be  enjoined  from  enforcing  a 
purchase-money  mortgage  until  he  had  complied  with  his  agreement  to  fur- 
nish a  perfect  title.  The  civil  law  leans  greatly  to  the  side  of  the  purchaser 
on  failure  of  title,  and  does  not  carry,  perhaps,  to  its  full  extent,  the  rule  that 
special  agreements  respecting  the  title  are  merged  in  the  conveyance. 


EEMEDY  BY  INJUNCTION COLLECTION  OF  PUBCHASE  MONEY.      845 

ready  paid."  If  the  covenantee  should  be  actually  evicted  by 
paramount  title,  there  would,  of  course,  be  little  probability  of 
proceedings  by  the  covenantor  to  enforce  a  vendor's  lien  or 
purchase-money  mortgage,  unless  he  should  seek  to  recover  a  per- 
sonal judgment  against  the  covenantee,  or  should  make  the  adverse 
claimants  parties.  In  either  event  the  suit  would  be  perpetually 
enjoined  as  to  the  covenantee.88  But  while  a  defect  in  the  title  is, 
in  general,  no  ground  for  resisting  the  enforcement  of  a  purchase- 
money  mortgage  where  no  personal  judgment  against  the  mort- 
gagor is  sought,  a  different  rule  has  been  held  to  apply  if  the 
vendor  conveyed  to  the  mortgagor  with  a  covenant  against 
incumbrances,  and  an  incumbrance  on  the  premises  exists.  In 
such  a  case  the  enforcement  of  the  mortgage  will  be  enjoined  until 
the  vendor  removes  the  incumbrance  or  reduces  it  to  a  sum  not 
exceeding  the  unpaid  purchase  money.39 

The  existence  of  a  defect  in  the  title  is  no  defence  to  a  suit  by 
the  grantor  to  enforce  a  vendor's  lien,  nor  to  a  suit  by  the  grantee 
to  rescind,  where  the  grantor  removes  the  defect  before  decree  in 
such  suit.40  In  a  case  in  which  the  title  of  the  grantor  was  bad 
at  the  time  the  vendor's  lien  was  reserved,  but  had  been  perfected 
by  the  Statute  of  Limitations  at  the  time  of  suit  to  enforce  the 
lien,  it  was  held  that  the  original  want  of  title 'in  the  grantor 
was  no  bar  to  the  suit.41 

§  334.  Where  there  are  no  covenants.  If  the  purchaser  ac- 
cept a  conveyance  without  covenants  for  title,  there  is  of  course 
no  ground  for  an  injunction  if  the  title  fails,  unless  the  vendor 
falsely  and  fraudulently  represented  the  state  of  the  title.48  The 
very  fact  that  the  conveyance  was  without  covenants  should  raise, 

"Ante,  §  261. 

"  Kingsbury  v.  Milner,  69  Ala.  502. 

"Ante,  §  184.  Coffman  v.  Scoville,  86  111.  335.  Dayton  v.  Dusenbury,  25 
N.  J.  Eq.  110;  Union  Bank  v.  Pinner,  25  N.  J.  Eq.  495;  Stiger  v.  Bacon,  29 
N.  J.  Eq.  442.  Bennett  v.  Pierce,  50  W.  Va.  604 ;  40  S.  E.  395. 

40 Stokes  v.  Acklen,  (Tenn.)  46  S.  W.  Rep.  316;  McElya  v.  Hill,  105  Tenn. 
319;  59  S.  W.  Rep.  1025;  Renner  v.  Marshall,  (Tenn.  Ch.  App.)  58  S.  W. 
Rep.  863. 

41  Bennett  v.  Pierce,  50  W.  Va.  604 ;  40  S.  E.  Rep.  395. 

"Ante,  §  267.  Banks  v.  Walker,  2  Sandf.  Ch.  (N.  Y.)  344.  Sutton  T. 
Sutton,  7  Grat.  (Va.)  234;  56  Am.  Dec.  109;  Price  r.  Ayres,  10  Grat.  (Va.) 
575. 

44 


MARKETABLE  TITLE   TO   EEAL  ESTATE. 

it  would  seem,  a  strong  presumption  that  the  purchaser  was  ad- 
vised as  to  the  weakness  of  the  title,43  and  that  the  contract  was 
one  of  hazard.  And  if  he  purchases  with  knowledge  that  the  title 
is  doubtful,  relying  for  his  indemnity  on  the  covenants  he  is  to 
receive,  and  afterwards  accepts  a  conveyance  with  covenants  for 
title,  he  cannot  afterwards  enjoin  the  collection  of  the  purchase 
money  on  the  ground  that  the  title  is  bad,  but  will  be  left  to  his 
remedy  on  the  covenants,44  unless,  it  would  seem,  he  has  been 
evicted  and  has  had  no  opportunity  to  set  up  that  defense  at  law. 
§  335.  Temporary  and  perpetual  injunctions.  Injunctions  to 
restrain  the  collection  of  the  purchase  money  are  not  necessarily 
in  rescission  of  the  contract  for  the  sale  of  lands.  A  perpetual 

**Of  course  no  such  presumption  can  arise  if  the  purchaser  be  induced, 
through  fraudulent  representations,  to  accept  a  conveyance  without  covenants, 
as  in  Denston  v.  Morris,  2  Edw.  Ch.  (N.  Y.)  37. 

"Merritt  v.  Hunt,  4  Ired.  Eq.  (N.  C.)  409.  The  facts  in  this  case  are  con- 
tained in  the  opinion  delivered  by  RUFFIN,  C.  J.,  and  being  such  as  frequently 
occur  in .  the  sale  of  real  property,  justify  the  following  copious  extract : 
"  The  crier  at  the  sale  and  several  of  the  bidders  prove,  that  the  defendant 
(vendor)  gave  distinct  notice  that  doubts  rested  upon  the  title,  as  he  was 
unable  to  trace  it  or  find  any  evidence  of  it  upon  the  register's  books,  and 
that  the  defendant,  in  order  to  induce  persons  to  bid  a  fair  price  for  the  land, 
said  that  he  would  warrant  the  title.  The  witnesses  all  understood  that  the 
purchaser  was  to  take  a  conveyance  for  the  land  at  all  events,  whether  the 
defendant  could  show  a  good  title  or  not  in  his  testatrix  or  himself,  provided 
he  would  bind  himself  by  a  general  warranty  in  the  deed.  They  state  that  the 
defendant  was  known  to  be  a  man  of  substantial  and  independent  property, 
and  that  the  bidders  considered  the  title  good  to  them  by  his  agreement  to 
make  it  good  in  case  of  an  eviction.  It  is  evident  that  the  plaintiff,  also,  had 
the  same  impression  and  understanding.  For,  after  he  was  declared  the  pur- 
chaser, he  made  no  inquiry  as  to  the  title,  nor  asked  any  delay  for  the  pur- 
pose of  looking  into  it,  but  was  satisfied  to  give  his  bond  for  the  price 
immediately,  and  take  a  deed  purporting,  as  was  then  thought,  to  convey  a 
fee,  and  containing  a  general  warranty  binding  the  defendant  and  his  heirs. 
He  also  sold  a  part  to  another  person,  and  conveyed  it  in  fee.  If  there  be  a 
defect  in  the  title,  therefore,  it  cannot  affect  the  contract  these  persons  made, 
for  the  contract,  in  terms  provided  for  such  a  possible  or  probable  defect,  and 
for  the  consequences  of  it.  If  a  person  chooses  to  buy  a  doubtful  or  bad  tide 
with  his  eyes  open,  and  at  his  own  risk,  he  is  as  much  bound  by  that,  as  by 
any  other  contract  fairly  made.  So,  if  he  buys  such  a  title  with  a  guaranty 
of  the  seller  against  eviction  or  disturbance,  he  must  take  the  title,  and  look 
to  the  vendor's  covenants  for  his  security  or  indemnity.  He  cannot  complain 
of  any  injury,  for  he  gets  precisely  what  he  bargained  for,  namely,  a  convey- 
ance with  the  warranty  of  the  vendor.  In  such  a  case  the  court  will  not  look 
into  the  title  at  all,  because  the  bargain  was,  that  it  was  immaterial 


EEMEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONET.       847 

injunction  would  of  course  have  that  effect  and  should  not  be 
granted  unless  the  covenantee  offers  to  reconvey  the  premises.41 
Temporary  injunctions  are  frequently  granted  on  allegations  of 
the  insolvency  of  the  covenantor,  until  the  rights  of  hostile  claim- 
ants of  the  land  can  be  decided,46  or  until  the  covenantor  removes 
incumbrances  from  the  premises,  in  the  latter  case,  it  seems, 
whether  the  covenantor  is  solvent  or  insolvent47 

On  dissolving  an  injunction  against  proceedings  to  collect  the 
purchase  money,  if  it  appear  that  the  injunction  was  sought  in 
good  faith  and  not  merely  for  purposes  of  delay,  as  where  a  third 
person  was  asserting  a  hostile  claim  to  the  land,  the  court  should 
not  give  damages,  against  the  purchaser.48 

§  336.  Resume.  While  there  are  cases  which  apparently  con- 
cede the  right  of  the  covenantee,  upon  a  complete  failure  of  the 
title  and  before  eviction,  to  rescind  the  contract  and  reconvey  the 
premises  to  the  grantor,  and  to  have  a  perpetual  injunction  against 
the  collection  of  the  purchase  money,  the  weight  of  authority  in 
America  undoubtedly  establishes  the  rule,  that  where  there  has 

it  was  good  or  bad,  provided  the  vendee  had  a  covenant  of  indemnity."  Liv- 
ingston v.  Short,  77  111.  587.  Rawlins  v.  Timberlake,  6  T.  B.  Mon.  (Ky.)  225; 
Hall  v.  Priest,  6  Bush  (Ky.),  14.  Miller  v.  Owens,  Walker  Ch.  (Miss.)  244; 
Anderson  v.  Lincoln,  5  How.  (Miss.)  279.  In  Wailes  v.  Cooper,  24  Miss.  232, 
it  was  held  that  the  right  to  a  perpetual  injunction  against  the  collection  of 
the  purchase  money  was  not  affected  by  the  fact  that  the  purchaser  bought 
with  notice  of  defects  and  took  a  conveyance  with  warranty,  if  the  vendor 
was  insolvent.  It  was  further  held,  however,  that  the  purchaser  was  not 
entitled  to  an  injunction  under  these  circumstances,  though  actually  evicted, 
unless  the  vendor  was  insolvent.  Parkins  v.  Williams,  5  Cold.  (Tenn.)  512. 
Demarett  v.  Bennett,  29  Tex.  267.  Rawle  Covts.  for  Title  (5th  ed.),  §  378, 
where  it  is  said  that  while  knowledge  of  an  incumbrance  or  defect  in  the  title, 
is  no  bar  to  a  recovery  on  the  covenants  themselves  in  a  court  of  law,  it 
should  operate  strongly,  if  not  conclusively,  against  his  right  to  equitable  relief 
where  they  are  not  yet  so  broken  as  to  give  a  present  right  to  actual  damages. 

"Jackson  v.  Norton,  6  Cal.  137.  Of  course  if  the  covenantee  has  been 
actually  evicted  from  the  entire  premises,  the  injunction  will  be  perpetual. 
Shelby  v.  Williams,  1  Bl.  (Ind.)  384.  Luckett  v.  Triplett,  2  B.  Mon.  (Ky.)  39. 

"Gay  v.  Hancock,  1  Rand.  (Va.)  72.  Morrison  v.  Beckwith,  4  T.  B.  Mon. 
(Ky.)  73;  16  Am.  Dec.  136.  Houston  v.  Hurley,  2  Del.  Ch.  247. 

47  Ante,  §  184. 

"Massie  v.  Sebastian,  4  Bibb  (Ky.),  436;  Morris  v.  McMillan,  3  A.  K. 
Marsh.  (Ky.)  565. 


848  MARKETABLE  TITLE   TO   EEAL  ESTATE. 

been  no  such  breach  of  the  grantor's  covenants  for  title  as  to  give 
a  present  right  to  recover  substantial  damages  at  law,  and  no  suit 
is  being  actually  prosecuted  or  threatened  by  an  adverse  claimant, 
and  the  covenantor  is  neither  insolvent  nor  a  non-resident,  a  per- 
petual injunction  to  stay  the  collection  of  the  purchase  money  will 
not  be  granted.49 

°Rawle  Covts.  for  Title  (5th  ed.),  §  375;  High  on  Injunctions  (3d  ed.) 
f  384.  The  books  contain  many  cases,  cited  to  this  proposition,  in  which  the 
question  of  insolvency  and  non-residence  of  the  vendor,  and  of  the  inconven- 
iency  of  proceedings  by  the  adverse  claimant,  was  not  raised;  and  in  which  no 
more  was  decided  than  that  the  mere  want  of  title  is  no  ground  for  detaining 
the  purchase  money  where  the  purchaser  holds  under  a  conveyance  with  cove- 
nants for  title,  and  has  not  been  disturbed  in  the  possession.  The  author  has 
collected  many  such  cases.  Ante,  chap.  16.  Magee  v.  McMillan,  30  Ala.  420; 
McLemore  v.  Mabson,  20  Ala.  137.  Busby  v.  Treadwell,  24  Ark.  457.  Trumbo 
v.  Lockridge,  4  Bush  (Ky.),  416;  English  v.  Thomasson,  82  Ky.  281.  The 
Kentucky  decisions  on  this  and  kindred  points,  are  collected  in  this  case.  See, 
also,  Abner  v.  York,  19  Ky.  Law  R.  643;  41  S.  W.  Rep.  309;  Foster  v.  Lyons, 
19  Ky.  Law  R.  1906;  44  S.  W.  Rep.  625.  A  judgment  for  the  purchase  money 
cannot  be  enjoined  on  the  ground  that  the  vendor's  lien  on  the  property  has 
not  been  released,  since  payment  of  the  judgment  extinguishes  the  lien. 
Wilder  v.  Smith,  12  B.  Mon.  (Ky.)  94.  Gayle  v.  Fattle,  14  Md.  69.  Here  a 
suit  by  an  adverse  claimant  against  the  covenantor  was  being  actually  prose- 
cuted, but  there  was  no  allegation  or  proof  of  non-residency  or  -insolvency  of 
the  covenantor.  Vick  v.  Percy,  7  Sm.  &  M.  (Miss.)  256;  45  Am.  Dec.  303.  Im 
McDonald  v.  Green,  9  Sm.  &  M.  (Miss.)  138,  the  point  was  queried,  but  was 
admitted  in  Johnson  v.  Jones,  13  Sm.  &  M.  (Miss.)  582,  citing  Wilty  v.  High- 
tower,  6  Sm.  &  M.  (Miss.)  350;  Wailes  v.  Cooper,  24  Miss.  232.  Henry  T. 
Elliott,  6  Jones  Eq.  (N.  C.)  175,  where  the  conveyance  with  warranty  pur- 
ported to  carry  a  fee,  but  the  purchaser  got  only  a  life  estate.  Bumpua  T. 
Plainer,  1  Johns.  Ch.  (N.  Y.)  213;  Abbott  v.  Allen,  2  Johns.  Ch.  (N.  Y.)  519; 
7  Am.  Dec.  554;  Miller  v.  Avery,  2  Barb.  Ch.  (N.  Y.)  118;  Platt  v.  Gilchrist, 
3  Sandf.  (N.  Y.  S.  C.)  118.  One  who  takes  a  conveyance  from  a  person  other 
than  the  vendor,  cannot  enjoin  the  collection  of  the  purchase  money  on  the 
ground  of  defective  title.  He  must  look  to  the  covenants  of  his  grantor.  Hole- 
man  v.  Maupin,  3  T.  B.  Mon.  (Ky.)  380.  Abner  v.  York,  19  Ky.  Law  R.  643; 
41  S.  W.  Rep.  309.  Remote  possibilities  that  the  covenantee  will  at  some  time 
in  the  future  be  disturbed  in  his  possession,  constitute  no  ground  for  an  in- 
junction. Collins  v.  Clayton,  53  Ga.  649.  In  many  cases  relief  by  injunction 
has  been  denied  upon  the  ground  that  the  remedy  at  law  by  action  upon  the 
covenants  for  title  is  adequate  and  complete,  though  no  right  to  recover  sub- 
stantial damages  on  those  covenants  exists,  the  covenantee  being  still  in  the 
possession  of  the  premises.  Wilkins  v.  Hogue,  2  Jones  Eq.  (N.  C.)  479.  In 
Swain  v.  Burnley,  1  Mo.  404,  it  was  said  that  the  purchaser  was  entitled  to  an 
injunction  against  a  judgment  for  the  purchase  money  until  he  could  prosecute 
a  suit  at  law  on  the  vendor's  covenants. 


BEMEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONEY.       849 

§  337.  WHERE  THERE  IS  NO  PRESENT  RIGHT  TO  RECOVER 
SUBSTANTIAL  DAMAGES  ON  THE  COVENANTS.  4.  W here  there 
is  no  present  right  to  recover  substantial  damages  on  the  covenants 
for  title,  but  there  is  a  clear  outstanding  title  in  a  stranger.  In 
a  few  of  the  States  injunctions  against  proceedings  to  collect  the 
purchase  money  have  been  granted  upon  a  complete  failure  of  the 
title  though  the  covenantee  is  in  the  undisturbed  possession  of  the 
premises,  and  the  covenantor  is  neither  insolvent  nor  non-resident, 
and  though  no  suit  by  the  real  owner  against  the  covenantee  has 
been  prosecuted  or  threatened.50  In  a  case  of  this  kind,  as  we  have 
already  seen,  it  would  not  seem  inequitable  to  permit  the  cove- 
nantee to  resist  the  payment  of  the  purchase  money,  provided  he 
reconveyed  the  premises  to  the  grantor,  and  placed  him  substan- 
tially in  the  same  condition  in  which  he  was  before  the  contract 
was  made.61  But  the  equity  of  the  cases  which  sustain  the  first- 
mentioned  position  is  open  to  serious  doubt,  in  that  they  impose 
no  terms  nor  conditions  upon  the  covenantee  under  which  he  may 
resist  the  payment  of  the  purchase  money  on  failure  of  the  title, 
nor,  as  a  general  rule,  limit  the  time  during  which  the  injunction 

*Yancey  v.  Lewis,  4  H.  &  M.  (Va.)  390;  Ralston  v.  Miller,  3  Rand.  (Va.) 
44;  15  Am.  Dec.  704;  Grantland  v.  Wight,  5  Munf.  (Va.)  295;  Keyton  r. 
Brawford,  5  Leigh  (Va.),  39;  Koger  v.  Kane,  5  Leigh  (Va.),  606;  Beale  T. 
Seiveley,  8  Leigh  (Va.),  675;  Long  v.  Israel,  9  Leigh  (Va.),  556,  obiter; 
Clark  v.  Hardgrove,  7  Grat.  (Va.)  399.  Renick  v.  Renick,  5  W.  Va.  291; 
Walmsley  v.  Stalnaker,  24  W.  Va.  214;  Hoke  v.  Jones,  33  W.  Va.  501;  10  S. 
E.  Rep.  775 ;  Kinports  v.  Rawson,  29  W.  Va.  487 ;  2  S.  E.  Rep.  85 ;  Jacksom 
v.  Walsh  Land  Co.,  51  W.  Va.  482;  41  S.  E.  Rep.  920.  In  Stead  v.  Baker,  13 
Grat.  (Va.)  380,  and  Lange  v.  Jones,  5  Leigh  (Va.),  192,  it  was  held  that 
equity  would  not  enjoin  the  collection  of  the  purchase  money  if  a  part  of  the 
premises  was  in  the  hands  of  an  adverse  claimant  whose  title  the  covenanter 
denied.  In  such  case  his  remedy  is  by  ejectment  against  the  claimant.  Where 
the  purchaser  is  mistaken  as  to  the  sufficiency  of  a  deed,  under  which  he  holds, 
to  convey  title  (c.  g.,  a  deed  defectively  acknowledged  by  a  married  woman), 
and  the  defect  is  clear  and  admitted,  he  should  not  be  compelled  to  rely  on  the 
covenant  of  warranty  and  take  the  risk  of  tie  solvency  of  the  vendor's  estate 
after  his  death.  Renick  v.  Renick,  5  W.  Va.  285. 

"Ante,  chap.  26.  In  Clark  v.  Hardgrove,  7  Grat.  (Va.)  407,  it  was  held 
that  the  covenantee,  on  failure  of  the  title,  might  enjoin  the  collection  of  the 
purchase  morey  though  the  covenantor  was  seeking  to  collect  the  same  from 
one  whose  obligation  the  covenantee  had  assigned  to  the  covenantor  as  col- 
lateral security  for  the  purchase  money. 
54 


850  MABKETABLE  TITLE  TO  BEAL  ESTATE. 

shall  be  operative.62  It  is  obviously  unjust  that  the  covenantee 
should  detain  both  the  purchase  money  and  the  premises 
indefinitely. 

The  doctrine  that  the  covenantee  may  detain  the  purchase  money 
on  a  clear  failure  of  the  title,  without  suit  prosecuted  or  threat- 
ened by  the  real  owner,  and  with  a  solvent  covenantor  to  make 
good  the  damages  when  a  substantial  breach  of  the  covenants  has 
occurred,  has  received  little,  if  any,  recognition  without  the  States 
of  Virginia  and  West  Virginia,  where  it  prevails.  It  is  there 
rested  upon  the  ground  that  the  covenantee  has  no  adequate  rem- 
edy at  law,  there  being  no  right  of  action  on  the  covenant  affirma- 
tively or  negatively  by  way  of  recoupment  or  equitable  set-off 
until  an  eviction  occurs.53  Hence  it  appears  that  in  those  States 

*  Examination  of  the  Virginia  decisions  cited,  supra,  will  show  that  in  few, 
if  any,  of  them  is  there  any  attempt  to  fix  the  length  of  time  during  which 
the  injunction  shall  be  operative.  Obviously  it  would  be  impracticable  to  fix 
any  such  time  where  the  covenantee  is  allowed  to  avail  himself  of  dor- 
mant rights  as  well  as  those  that  are  being  actively  asserted.  In  Gay  v.  Han- 
cock, 1  Rand.  (Va.)  72,  where  the  adverse  claimant  had  actually  brought  suit 
to  enforce  his  rights,  it  was  of  course  held  that  the  collection  of  the  pur- 
chase money  should  be  stayed  until  that  suit  should  be  decided.  In  Grantland 
v.  Wight,  2  Mnnf.  (Va.)  179,  it  was  held  that  the  injunction  should  not  be 
dissolved  until  a  good  and  sufficient  deed  had  been  tendered  to  the  purchaser. 

"Roger  v.  Kane,  5  Leigh  (Va.),  608,  where  it  was  said  by  TUCKER,  P.,  in 
respect  to  the  practice  in  Virginia  of  enjoining  the  collection  of  the  purchase 
money  on  failure  of  the  title:  "The  jurisdiction  thus  confessedly  exercised  by 
the  courts  of  equity  with  us  results  from  what  may  be  called  the  preventive 
justice  of  those  tribunals.  It  arrests  the  compulsory  payment  of  the  purchase 
money  when  the  purchaser  can  show  that  there  is  a  certainty  or  a  strong 
probability  that  he  must  lose  that  for  which  he  is  paying  his  money.  It  gives 
him  relief  too,  though  his  demand  may  be  in  the  nature  of  unliquidated  dam- 
ages, because  he  has  no  other  means  of  ascertaining  them.  Thus,  if  the  pur- 
chaser can  show  that  he  has  received  a  deed  with  general  warranty,  and  that 
the  title  is  bad,  yet  if  he  has  not  been  evicted  he  cannot  maintain  covenant  at 
law  and  ascertain  his  damages  before  that  tribunal  in  order  then  to  set  them 
off  against  the  demand.  If,  indeed,  there  are  covenants  for  good  title,  etc.,  it 
may  be  otherwise;  and  so  it  may  often  happen  that  an  action  may  be  brought 
where  there  are  such  covenants  of  good  title,  etc.,  upon  which  the  validity  of 
the  title  may  be  tested  and  damages  of  the  party  ascertained.  Whether  in 
these  cases  relief  could  be  given  in  equity  it  is  not  necessary  here  to  say.  But, 
where  there  is  only  a  covenant  this  cannot  be  done;  and,  hence,  I  conceive,  the 
party  would  be  entitled  to  the  assistance  of  a  court  of  equity  where  he  is  full- 
handed  with  proof  that  his  title  is  defective,  although  he  has  not  yet  been 
evicted." 


EEMEDY  BY  INJUNCTION COLLECTION  OF  PURCHASE  MONEY.       851 

there  may  be  a  condition  of  the  title  which  would  justify  an  in- 
junction against  the  collection  of  the  purchase  money,  and  yet 
would  not  support  the  defense  of  recoupment  or  set-off  at  law. 

The  injunction  will  not  be  granted  unless  the  complainant  al- 
leges facts  showing  a  clear  outstanding  title  in  a  stranger,  and 
the  burden  will  be  on  him  to  prove  the  existence  of  that  title.64 
Allegations  that  the  title  is  defective,  without  showing  in  what 
respect,  or  facts  which  establish  nothing  more  than  that  the  title 
is  doubful  or  unmarketable,  will  not  support  the  application  for 
an  injunction  ;65  nor  will  he  be  entitled  to  relief  if  the  claims  of 
the  owner  of  the  outstanding  title  are  barred  by  the  Statute  of 
Limitations.66  Care  must  be  taken,  however,  to  distinguish  from 
these  cases  a  class  in  which  injunctions  to  prevent  a  sale  under  a 
deed  of  trust,  whether  executed  to  secure  deferred  payments  of 
the  purchase  money  for  land,  or  to  secure  general  indebtedness, 
have  been  freety  granted  in  Virginia  and  West  Virginia  upon  an 
allegation  that  there  is  a  cloud  upon  the  title  to  the  land  about 
to  be  sold.  In  such  a  case  the  injunction  is  granted  until  the 
cloud  on  the  title  is  removed.  This  is  done  in  the  interest  of  all 
parties  that  there  may  be  no  sacrifice  of  the  property  and  that  the 
title  of  the  purchaser  may  be  assured."  If  the  purchaser  accept 

"Grantland  v.  Wight,  5  Munf.  (Va.)   29-5. 

58  Kinports  v.  Rawson,  29  W.  Va.  487,  whore  it  was  also  held  that  idle  ami 
groundless  claims  to  the  land,  though  suit  had  been  brought  upon  them,  would 
not  support  the  injunction.  The  court  must  be  able  to  see  that  there  is  some 
foundation  for  the  claim.  Bennett  v.  Pierce,  50  W.  Va.  604;  40  S.  E.  Rep. 
395;  French  v.  Howard,  3  Bibb  (Ky.),  301.  The  complainant  must  allege 
such  facts  in  his  bill  as  will  affirmatively  show  such  an  incumbrance  or  out- 
standing title  as  will  defeat  the  vendor's  title  under  which  the  complainant 
holds.  Cantrell  v.  Mobb,  43  Ga.  193.  In  Rosenberger  v.  Keller,  33  Grat.  (Va.) 
494,  it  was  said  by  STAPLES,  J. :  "  The  numerous  adjudged  cases  show  that  this 
court  has  gone  very  far  in  staying  the  collection  of  the  purchase  money  for 
land  upon  proof  of  a  defect  of  the  title  where  no  suit  is  pending  or  even 
threatened.  But  even  here  a  distinction  has  always  been  made  between  an 
injunction  to  a  judgment  for  the  purchase  money  and  an  injunction  to  a  sale 
under  a  deed  of  trust.  In  the  latter  case  the  court  interferes  the  more  readily 
upon  the  ground  of  removing  a  cloud  upon  the  title  in  order  to  prevent  a 
sacrifice  of  the  property,  whereas,  in  a  like  case,  the  court  will  not  interf.-re 
with  the  vendor  in  enforcing  his  judgment  since  the  doubt  about  the  title  n«r\y 
eventually  turn  out  to  be  frivolous  and  groundless." 

«•  Bennett  v.  Pierce,  50  W.  Va.  604;  40  S.  E.  395. 

"Miller  v.  Argyle,   5  Leigh    (Va.),  460    (508);    Oay   v.  Hancock. 
(Va.)  72.    See,  also,  the  cases  cited,  ante  p.  849,  n.  50.    Lauo  v.  Tidtall.  Gilm. 


852  MAEKETABLE  TITLE  TO  KEAL,  ESTATE. 

a  conveyance  from  his  vendor's  vendor,  with  the  agreement  be- 
tween all  parties  that  he  shall  pay  the  purchase  money  to  his  im- 
mediate vendor,  he  cannot,  .on  failure  of  the  title,  enjoin  the  col- 
lection of  the  purchase  money.  He  will  be  forced  to  his  action 
on  the  covenants  of  his  grantor.58 

(Va.)  130;  Peers  v.  Barnett,  12  Grat.  (Va.)  416;  Morgan  v.  Glendy,  92  Va. 
86:  22  S.  E.  Rep.  854.  But  in  this  case  the  fact  that  the  vendor  held  under 
a  deed  of  trust  sale,  which  the  trustee  had  improperly  made,  he  being  one  of 
the  creditors  secured  by  the  trust,  was  held  no  such  defect  in  the  title  as 
would  justify  an  injunction  against  a  sale  under  a  trust  to  secure  the  pur- 
chase money,  where  the  evidence  satisfactorily  showed  that  the  proceeds  of 
sale  under  the  first  mentioned  trust  had  all  been  properly  accounted  for,  except 
a  trifling  amount. 

*  Price  v.  Avres,  10  Grat.  (Va.)  575. 


CHAPTER  XXXV. 

IN  CASES  OF  FRAUD  AND  MISTAKE. 

FRAUD  ON  THE  PAJEIT  OF  THE  GRANTOR.     §  338. 

General   principles. 

Damages  in  equity.     §  339. 
MISTAKE   OF  FACT.     §   340. 

General  rule. 

Negligence  of  purchaser.     §  341. 

Immaterial  mistakes.     §   342. 

Mistakes  as  to  quantity.     §  343. 
MISTAKE  OF  LAW.      §   344. 

General  rule. 

Distinction  between  ignorance  of  law  and  mistake  of  law.     §  245. 

Erroneous  construction  of  devise  or  grant.     §  346. 

Where  the  construction  of  the  law  is  doubtful.     §  347. 

Misrepresentation  of  the  law  by  the  vendor.     §  348. 

§  308.  FRAUD  ON  THE  PART  OF  THE  GRANTOR.  General 
principles.  Equity  accomplishes  the  rescission  of  an  executed  con- 
tract by  cancelling  the  written  evidence  thereof,  and  decreeing  that 
either  party  shall  restore  to  the  other  whatever  he  has  received  in 
performance  of  the  contract.  Few  cases,  it  has  been  said,  turn  on 
greater  niceties  than  those  which  involve  the  question  whether  a 
contract  ought  to  be  delivered  up  to  be  canceled,  or  whether  the 
parties  should  be  left  to  their  legal  remedy.1  The  jurisdiction  of 
equity  in  such  cases  has  been  reduced  to  very  narrow  limits ;  and, 
where  it  has  been  invoked  by  the  purchaser  on  failure  of  the  title, 
has  been,  with  certain  seeming  exceptions,  invariably  denied,  un- 
less the  purchaser  was  induced  to  accept  tho  conveyance  by  a 
fraudulent  misrepresentation  or  concealment  of  facts  on  the  part 
of  the  vendor,  or  unless  the  parties  were  mutually  mistaken  as  to 
the  existence  of  some  fact  or  facts  upon  which  the  validity  of  the 
title  depended.2  The  exceptions  to  this  rule  are  those  cases  in 
which  the  purchaser  is  permitted  to  enjoin  the  collection  of  the 

1 1  Sugd.  Vend.  243. 

'Ante,   §  267.     Willan  v.   Willan,   16  Yes.  83.     Madden  v.  Leak,  5  J.  J. 
Marsh.  (Ky.)  95;  Ogden  v.  Yoder,  5  J.  J.  Marsh.  (Ky.)  424. 


854  MAEKETABLE  TITLE  TO  REAL  ESTATE. 

purchase  money  where  the  grantor  is  insolvent  or  a  non-resident 
so  that  recovery  against  him  will  be  either  impossible  or  unavail- 
ing when  an  eviction  shall  have  occurred.3  Other  exceptions,  indi- 
cated rather  than  positively  declared,  by  a  line  of  authorities 
already  referred  to,  are  those  cases  in  which  the  grantee  upon  a 
clear  and  acknowledged  failure  of  the  title  accompanied  by  a 
moral  certainty  of  eviction  will  be  permitted  to  detain  the  pur- 
chase money  provided  he  reconveys  the  premises  to  the  grantor.4 
But  it  is  believed  that  no  case  can  be  found  in  the  English  or 
American  reports,  in  which  a  bill  in  equity  has  been  entertained 
and  a  decree  rescinding  an  executed  contract  for  the  sale  of  lands 
upon  no  other  ground  than  want  of  title  in  the  vendor,  has  been 
pronounced,5  he  being  neither  a  non-resident  nor  insolvent.  In 
one  of  the  States,  and  possibly  in  others,  having  paid  the  purchase 
money  in  full  and  received  a  conveyance  with  covenants  for  title, 
the  grantee  will,  on  a  clear  failure  of  the  title,  be  allowed  to  file 
his  bill  in  equity  for  a  rescission  of  the  contract  and  return  of  the 
purchase  money  if  the  grantor  is  insolvent  or  a  non-resident.6 

A  decree  for  the  rescission  of  an  executed  contract  must  provide 
that  within  a  reasonable  time  the  grantee  shall  execute  a  recon- 
veyance duly  probated  for  registration  in  the  State  in  which  the 
land  lies.7  But  a  mere  delivery  of  a  deed  to  the  purchaser  without 
acceptance  thereof  by  him,  will  not  oblige  him  to  execute  a  recon- 
veyance before  he  can  recover  the  purchase  money,  the  deed  hav- 
ing misdescribed  the  property.8  Of  course  a  covenantee  who  has 
been  evicted  from  the  premises,  cannot  maintain  a  suit  in  equity 

*  Ante,  ch.  34.  Where  the  grantor  is  insolvent,  and  a  recovery  on  his  cove- 
nants for  title  would  prove  unavailing,  equity  will  decree  a  rescission  of  the 
contract.  Parker  v.  Parker,  93  Ala.  80;  9  So.  Rep.  426.  Aliter,  where  there 
was  no  fraud  and  no  insolvency.  Fields  v.  Clayton,  117  Ala.  538;  23  So. 
Rep.  530. 

4  Ante,  ch.  26. 

'See  the  cases  cited,  ante,  p.  .  Decker  v.  Schulze,  (Utah)  39  Pac.  Rep. 
261. 

•Brannen  v.  Curtis,  (Tenn.  Ch.  App.)  53  S.  W.  Rep.  234.  In  this  case  the 
purchaser  was  held  entitled  to  the  return  of  the  purchase  money  and  interest, 
taxes  paid  by  him,  and  the  value  of  his  improvements,  and  was  charged  with 
the  annual  rental  value  of  the  land. 

7  Winfrey  v.  Drake,  4  Lea   (Tenn.),  290. 

•Fenton  v.  Alsop,  79  Cal.  402;  21  Pac.  Rep.  839. 


IN  CASES  OF  FRAUD  AND  MISTAKE.  855 

to  rescind  the  contract  and  recover  back  the  purchase  money.  His 
remedy  at  law  is  adequate  and  complete.  He  has  a  present  right 
to  recover  substantial  damages  for  breach  of  the  covenant.' 

The  jurisdiction  of  a  court  of  equity  to  rescind  a  contract  for 
the  sale  of  lands  which  has  been  executed  by  a  conveyance,  on  the 
ground  of  fraudulent  misrepresentation  or  concealment  of  facta 
respecting  the  title,  is  clear  and  undoubted.10  We  have  already 
seen  what  acts,  conduct  and  declarations  of  the  vendor  in  relation 
to  the  title  during  the  negotiations  of  the  parties,  are  to  be  deemed 
fraudulent;  also,  when  the  purchaser  will  be  deemed  to  have 
waived  his  right  to  rescind  because  of  the  fraud,  and  that  fraud, 
of  which  he  was  ignorant,  cannot  be  regarded  as  merged  in  the 
conveyance  which  he  accepts;  also  when  the  purchase  money 
may  be  detained  or  recovered  back,  or  damages  recovered  at 
law,  or  the  collection  of  the  purchase  money  stayed  by  injunction, 
in  cases  of  fraud.11  We  have  seen  that  one  who  has  been  induced 
to  accept  a  conveyance  of  lands  through  the  fraudulent  representa- 
tions of  the  grantor  respecting  the  title,  is  not  limited  to  his  action 

•Ohling  v.  Luitjens,  32  111.  23.  See,  also,  Bradley  v.  Dibrell,  3  Heisk. 
(Tenn.)  522,  where  the  complainant  setting  out  facts  showing  a  breach  of 
warranty  only,  amended  his  bill  charging  fraud  and  misrepresentation  by  the 
vendor. 

10 1  Sugd.  Vend.  (8th  Am.  ed.)  375  (246)  ;  Dart  V.  &  P.  377;  Bigelow  on 
Fraud,  415.  Berry  v.  Arimstead,  2  Keen,  221;  Gibson  v.  D'Este,  2  Y.  A  C. 
542.  Greenlee  v.  Gaines,  13  Ala.  198;  48  Am.  Dec.  49;  Read  v.  Walker,  18 
Ala.  323;  Lanier  v.  Hill,  25  Ala.  554,  where  an  administrator,  c.  t.  a.,  fraudu- 
lently represented  that  he  had  authority  under  the  will  to  sell.  Foster  v. 
Gresset,  29  Ala.  393.;  Bryant  v.  Boothe,  30  Ala.  311;  68  Am.  Dec.  117;  Will- 
iams v.  Mitchell,  30  Ala.  299 ;  Prout  v.  Roberts,  32  Ala.  427.  Parham  v.  Ran- 
dolph, 4  How.  (Miss.)  451;  35  Am.  Dec.  403;  Davidson  v.  Moss,  5  How. 
(Miss.)  673;  English  v.  Benedict,  25  Miss.  167;  Rimer  v.  Dugan,  39  Miss. 
477;  77  Am.  Dec.  687.  Fitch  v.  Baldwin,  17  Johns.  (N.  Y.)  161.  Shackelford 
v.  Handly,  1  A.  K.  Marsh.  (Ky.)  495;  10  Am.  Dec.  753;  Peebles  v.  Stephens, 
3  Bibb  (Ky.),  324;  6  Am.  Dec.  660;  Glass  v.  Brown,  6  T.  B.  Mon.  (Ky.)  356. 
Bank  v.  Bank,  7  Lea  (Tenn.),  420;  Rice  v.  Silverton,  170  111.  342;  48  N.  E. 
Rep.  969;  Zuenker  v.  Kuehn,  113  Wis.  421;  88  N.  W.  Rep.  605;  Ramirez  v. 
Barton,  (Tex.  Civ.  App.)  41  S.  W.  Rep.  508;  Corbett  v.  McGregor,  (Tex.  Civ. 
App.)  84  S.  W.  Rep.  278. 

11  Ante,  §§  102,  270,  329.  The  fact  that  a  railway  company,  as  grantor  in  a 
quit-claim  deed,  refers  to  a  certain  public  land  grant  as  the  source  of  its  title, 
which  grant  turns  out  to  be  invalid,  is  not  sufficient  to  fix  fraud  upon,  the 
company.  Union  Pac.  R.  Co.  v.  Barnes,  64  Fed.  Rep.  80. 


856  MARKETABLE  TITLE  TO  BEAL  ESTATE. 

on  the  covenants  contained  in  the  deed.  Equity  has  concurrent  jur- 
isdiction with  courts  of  law  in  cases  of  fraud,  and  the  objection 
that  a  grantee,  seeking  rescission  of  the  contract,  should  sue  at  law 
on  his  warranty,  or  in  trespass  for  deceit,  will  not  be  entertained.12 
The  general  rule  is  that  on  application  for  the  rescission  of  an 
executed  contract  in  case  of  fraud,  the  purchaser  must  reconvey  or 
offer  to  reconvey  the  estate  to  the  grantor,  just  as  he  must  restore 
the  premises  to  the  vendor  and  place  him  in  statu  quo  on  rescission 
of  an  executory  contract.  But  this  rule  has  been  held  not  to  apply 
where  the  purchaser  has  never  been  in  possession  and  the  vendor 
had  absolutely  no  title.  In  such  a  case  the  title  is  considered  worth- 
less, and  the  rule  is  the  same  whether  the  subject  of  the  contract 
be  real  or  personal  property;  if  the  thing,  the  consideration  of 
which  is  sought  to  be  recovered  back,  is  entirely  worthless,  there  is 
no  duty  to  return  it.13  Neither  does  the  rule  apply  if  it  be  clear 
that  the  seller  will  not  receive  back  tlje  premises.14  It  has  been  held 
in  a  case  in  which  the  conveyance  was  a  forgery,  and  the  alleged 
owner  of  the  property  a  fictitious  person,  that  the  grantee  was  under 
no  obligation  to  execute  a  reconveyance  of  the  premises.15  The 
purchaser  will  be  entitled  to  a  decree  for  the  value  of  his  improve- 
ments, upon  rescission  of  an  executed  contract  for  the  sale  of  lands 
on  the  ground  of  fraud  or  mistake  respecting  the  title;  also  for 
taxes  paid  by  him,  with  interest  thereon,  and  on  the  sums  expended 
in  good  faith  by  him  for  permanent  improvements.16  But  he  must 
account  for  the  rents  and  profits.17  He  is  also  entitled  to  a  lien  on 

"Ante,  §  270.  1  Story  Eq.  Jur.  §  193;  Adams  Eq.  177;  3  Pars.  Cont.  177. 
Meek  v.  Spracher,  87  Va.  162;  12  S.  E.  Rep.  397.  Perry  v.  Boyd,  126  Ala.  162; 
28  So.  Rep.  711.  But  even  in  those  jurisdictions  in  which  the  distinctions  be- 
tween legal  and  equitable  procedure  have  been  abolished,  an  action  to  rescind 
for  fraud  cannot  be  joined  with  an  action  on  the  covenants  for  title,  since  the 
former  iisaffirms,  while  the  latter  affirms,  the  contract.  McLennan  v.  Pren- 
tice, (Wis.)  55  N.  W.  Rep.  764. 

"Bond  v.  Ramsey,  89  111.  29.  Babcock  v.  Case,  61  Pa.  St.  427;  100  Am. 
Dec.  654.  Here  the  vendor  conveyed  land  which  he  held  under  a  tax  deed,  but 
it  appeared  that  the  land  had  been  sold  for  taxes  when  none  were  due  thereon. 
Jandorf  v.  Patterson,  90  Mich.  40;  51  N.  W.  Rep.  352. 

"Ante,  §  261.     Culbertson  v.  Blanchard,  79  Tex.  486;  15  S.  W.  Rep.  700. 

15  Wheeler  v.  Standley,  50  Mo.  509. 

18  Perry  v.  Boyd,  126  Ala.  162 ;  28  So.  Rep.  711. 

"•Baptiste  v.  Peters,  51  Ala.  158. 


IN  CASES  OF  FBAUD  AND  MISTAKE.  857 

such  interest  as  the  grantor  has  in  the  land,  to  secure  the  return 
of  the  purchase  money  paid  by  him.18 

If  the  grantee  intends  to  rely  upon  the  grantor's  fraud  as  ground 
for  rescinding  the  contract,  he  must  distinctly  allege  the  fraud  in 
his  pleadings,  so  that  issue  may  be  taken  thereon.19  But  it  will 
suffice  to  allege  the  specific  fraudulent  representation  that  was 
made,  without  setting  out  facts  showing  a  want  of  title.10 

We  have  seen  that  a  purchaser  electing  to  rescind  the  contract  on 
the  ground  of  fraudulent  representations  as  to  the  title,  must  act 
promptly  on  discovery  of  the  fraud.21  Whether  he  has  or  has  not 
waived  his  right  to  rescind  must  of  course  be  determined  by  the 
circumstances  of  each  particular  case. 

§  339.  Damages  in  equity.  According  to  the  English  equity 
practice,  until  within  a  comparatively  recent  period,  no  damages 
could  be  awarded  to  a  purchaser,  upon  the  rescission  of  a  contract 
induced  by  the  fraud  of  the  defendant.  But  now  by  statute  in 
England  equity  may  give  damages  in  such  a  case.22  In  America, 
the  rule  seems  to  be  that  equity  will  not  take  jurisdiction  of  a  suit 
for  damages,  when  that  is  the  sole  object  of  the  bill,  and  when  no 
other  relief  can  be  given;  but  i'f  other  relief  is  sought  by  the  bill 
which  a  court  of  equity  is  alone  competent  to  grant,  and  damages 
are  claimed  as  incidental  to  that  relief,  the  court,  being  properly 
in  possession  of  the  cause,  will,  to  prevent  multiplicity  of  suits, 
proceed  to  determine  the  whole  cause.23  This  rule,  doubtless,  pre- 

"  Ramirez  v.  Barton  (Tex.  Civ.  App.),  41  S.  W.  Rep.  508. 

"Hart  v.  Hannibal  &  St.  Jo.  R.  Co.,  65  Mo.  509.  James  v.  McKernon,  6 
Johns.  (N.  Y.)  543.  Patton  v.  Taylor,  7  How.  (U.  S.  15SK 

20  Orendorff  v.  Tallman,  90  Ala.  641 ;  7  So.  Rep.  821. 

"Ante,  §  276.  Where  it  appeared  that  the  purchasers  were  non-residenta, 
and  that  the  prevalence  of  yellow  fever  in  the  vendor's  locality  prevented  an 
earlier  offer,  it  was  held  that  an  offer  to  rescind  made  six  months  after  dis- 
covery of  the  fraud,  was  made  within  a  reasonable  time.  Orendorff  v.  Tall- 
man,  90  Ala.  641;  7  So.  Rep.  821. 

*  1  Sugd.  Vend.  (14th  ed.)  55,  233,  251 ;  21  &  22  Viet.  c.  27. 

»  Person  v.  Sanger,  Davies  (U.  S.),  252,  261.  In  Alger  v.  Anderson,  92  Fed 
Rep.  696,  it  was  held  that  the  grantee,  holding  under  a  deed  with  a  covenant 
of  warranty,  who  had,  by  his  laches,  wiived  his  right  to  a  rescission  of  the 
executed  contract  on  the  ground  of  fraudulent  misrepresentations  as  to  the 
title,  could  not  maintain  a  bill  in  equity  to  recover  damages  for  failure  of 
title  to  part  of  the  property,  he  not  having  been  disturbed  in  the  possession  of 
the  property. 


858  MARKETABLE  TITLE  TO  REAL  ESTATE. 

vails  at  the  present  time  in  those  States  in  which  the  distinction 
between  legal  and  equitable  procedure  is  still  maintained.  In  other 
States,  where  that  distinction  has  been  swept  away  or  has  never 
existed,  it  is  presumed  that  the  courts  in  rescinding  a  contract, 
voidable  on  the  ground  of  fraud,  have  power  to  give  judgment  for 
whatever  damages  the  party  defrauded  may  have  sustained.  'In 
Kentucky  it  has  been  held  that  equity  will  not  entertain  a  bill 
seeking  damages  for  fraudulent  representations  by  the  vendor  as 
to  his  title.  In  such  a  case  equity  relieves  by  setting  aside  the  con- 
tract entirely,  and  not  by  awarding  compensation  in  damages,  ex- 
cept, perhaps,  where  the  complainant  has,  for  some  reason,  an  in- 
adequate remedy  at  law.24 

§  340.  MISTAKE  OF  TACT.  General  rules.  Mistake  of  fact,  and 
in  some  cases  mistake  of  law,  has  been  held  clear  ground  for 
rescinding  an  executed  contract  for  the  sale  of  lands,  and  for  re- 
fusing specific  performance  of  those  which  are  executory.25  The 
question  of  mistake,  as  it  affects  the  right  to  rescind  an  executory 
contract,  is  lowered  in  importance  by  the  general  rule  which  per- 
mits the  rescission  of  such  a  contract  on  a  clear  failure  of  the  title 
irrespective  of  other  considerations,  unless  that  right  has  been 
waived,  or  the  vendor  is  allowed  to  perfect  the  title.26  But  exe- 
cuted contracts  can,  as  a  general  rule,  be  rescinded  only  upon  the 
ground  of  fraud  or  mistake.  A  distinction  then  is  to  be  observed 
between  the  cases  which  have  arisen  under  these  two  heads.27  The 
cases  in  which  rescission  of  an  executed  contract  for  the  sale  of  land 

54Colyer  v.  Thompson,  2  T.  B.  Mon.  (Ky.)  16,  citing  Hardwick  v.  Forbes,  1 
Bibb  (Ky.),  212;  Waters  v.  Mattingly,  1  Bibb  (Ky.),  244;  4  Am.  Dec.  631; 
Robinson  v.  Galbreath,  4  Bibb  (Ky.),  183,  which  were  all  cases  in  which  the 
contract  was  for  the  sale  of  personal  property. 

25  By  the  civil  law  an  action  of  redhibition  to  rescind  a  sale  and  to  compel 
the  vendor  to  take  back  the  property  and  restore  the  purchase  money,  could 
be  brought  by  the  vendee  wherever  there  was  error  in  the  essentials  of  the 
agreement,  although  both  parties  were  ignorant  of  the  defect  which  rendered 
the  property  unavailable  to  the  purchaser  for  the  purposes  for  which  it  was 
intended.  Bates  v.  Delavan,  5  Paige  Ch.  (N.  Y.)  307. 

20  As  to  the  right  to  rescind  an  executory  contract  on  the  ground  of  mistake 
as  to  the  title,  see  Mead  v.  Johnson,  3  Conn.  597.  Smith  v.  Robertson,  23  Ala. 
312.  Smith  v.  Mackin,  4  Lans.  (N.  Y.)  41;  Post  v.  Leet,  8  Paige  Ch.  (N.  Y.) 
336.  Davis  v.  Heard,  44  Miss.  51.  Armistead  v.  Hundley,  7  Grat.  (Va.)  64. 
Gilroy  v.  Alis,  22  Iowa,  174. 

27  Hurd  v.  Hall,  12  Wis.  125. 


IN  CASES  OF   FRAUD  AND  MISTAKE.  859 

on  the  ground  of  mistake  as  to  the  title  has  been  sought,  may  be 
divided  into  two  classes:  (1)  Those  in  which  there  was  a  mutual 
mistake  of  the  narties  as  to  the  existence  or  non-existence  of  some 
particular  fact  or  lacts  upon  which  the  validity  of  the  title  de- 
pends, and  which  the  parties  must  be  presumed  to  have  had  in 
contemplation  at  the  time  the  conveyance  was  made.28  (2)  Those 
in  which  the  parties  were  correctly  informed  as  to  all  the  facts,  but 
were  mistaken  in  their  application  of  the  law  thereto.  Of  the 
former  class  are  cases  in  which  the  purchase  is  of  an  interest  or 
estate  liable  to  be  divested  upon  the  happening  of  a  particular 
event,  and  that  event  has  already  transpired  without  the  knowl- 
edge of  the  parties,29  as  where  the  purchaser  of  an  estate,  pur  autre 
vie,  takes  a  conveyance  in  ignorance  of  the  fact  that  the  person 
on  whose  life  the  estate  depends  is  dead.30  Of  the  same  class  is  a 
case  in  which,  at  the  time  of  the  sale,  the  parties  were  ignorant 

28  Nabours  v.  Cocke,  24  Miss.  44,  where  the  validity  of  the  title  acquired 
under  a  sheriff's  deed  depended  upon  the  fact  that  a  forthcoming  bond  had 
been  given  by  the  execution  defendant,  and  the  parties  acted  under  the  mis- 
taken belief  that  the  bond  had  been  given.  Martin  v.  McCormick,  8  N.  Y.  331. 
In  this  case,  the  plaintiff  purchased  a  tax  title  from  the  defendant,  both  being 
ignorant  that  the  premises  had  been  redeemed  by  a  party  entitled.  It  was 
held  that  the  plaintiff  might  recover  back  the  purchase  money.  A  mistake  in 
the  belief  that  a  tract  of  land  claimed  under  the  preemption  law  is  within  a 
district  in  which  the  lands  may  be  preempted,  is  a  mistake  of  fact  and  not  a 
mistake  of  law.  Moreland  v.  Atchison,  19  Tex.  303.  In  Baptiste  v.  Peters,  51 
Ala.  158,  land  conveyed  was  supposed  to  be  the  separate  estate  of  a  married 
woman,  when  in  fact  it  belonged  to  her  deceased  husband's  estate,  and  ad- 
joined the  separate  property  of  the  wife.  The  contract  was  rescinded  on  the 
ground  that  there  was  a  mistake  of  fact.  Where  an  administrator  sold  an 
estate  supposing  his  title  to  be  in  fee,  and  the  purchaser  supposed  he  was 
buying  a  fee,  and  nothing  passed  but  an  equity  of  redemption,  it  was  held  "  a 
case  of  mixed  and  mutual  mistake  of  law  and  fact,"  and  that  the  purchaser 
was  entitled  to  relief.  Griffith  v.  Townley,  69  Mo.  13;  33  Am.  Rep.  476. 

"1  Story  Eq.  Jur.  (I3th  ed.)  §  143.  Hitchcock  v.  Giddings,  4  Price,  135. 
This  is  the  leading  English  case  on  the  point.  The  purchaser  bought  an  in- 
terest in  a  remainder  in  fee  expectant  on  an  estate  tail.  At  the  time  of  the 
purchase,  the  tenant  in  tail  had  barred  the  remainder  by  suffering  a  common 
recovery,  of  which  fact  the  parties  were  ignorant  until  after  a  conveyance  had 
been  executed.  The  court  rescinded  the  contract  on  the  ground  of  mistake, 
resting  the  decision  on  the  fact  that  the  vendor  had  no  interest  in  the  subject- 
matter  at  the  time  of  the  sale.  Lord  ST.  LEONABDS  has  expressed  himself  in 
guarded  terms  about  this  case,  and  Lord  ELDON  doubted  its  authority.  1 
Sugd.  Vend.  (8th  Am.  ed.)  376  (247). 

"Allen  v.  Hammond,  11  Pet.  (U.  S.)  63,  06.  diet. 


860  MARKETABLE  TITLE  TO  REAL  ESTATE. 

that  the  land  had  previously  been  sold  and  conveyed  by  one  acting 
under  a  power  of  attorney  from  the  vendor.31  In  all  such  cases, 
the  subject-matter  of  the  contract  has  no  existence;  there  is  no 
estate  nor  title,  de  facto  or  de  jure,  in  the  grantor,  and  the  grantee 
is  as  much  entitled  to  rescission  as  the  buyer  of  a  chattel  which,  at 
the  time  of  the  sale,  had  been  destroyed  without  the  knowledge  of 
either  party.32  But  care  must  be  taken  to  distinguish  between 
mistake  as  to  the  existence  of  an  estate  of  any  kind  in  the  grantor, 
de  facto  or  de  jure,  and  mere  ignorance  of  the  existence  of  a 
paramount  title  to  the  estate  in  a  stranger,  e.  g.,  mere  ignorance  of 

81  Armistead  v.  Hundley,  7  Grat.  (Va.)  52;  Humphrey  v.  McClenachan,  1 
Munf.  (Va.)  493. 

M  It  will  be  found  that,  in  nearly  all  the  cases  cited  below,  no  posssesion 
was  ever  taken  or  received  by  the  purchaser,  and  in  some  that  the  supposed 
subject-matter  of  the  contract  had  not  even  a  physical  existence.  The  rule 
stated  in  the  text  has  been  applied  in  the  following  cases,  among  others: 
Gardner  v.  Mayo,  26  Barb.  (N.  Y.)  423,  where  a  municipal  corporation  sold  a 
lot  to  enforce  an  assessment,  and  owing  to  a  defect  in  the  assessment  proceed- 
ings, the  title  was  bad.  Martin  v.  McCormick,  4  Seld.  (N.  Y.)  331,  where  a 
tax  title  had  been  purchased  under  the  mistaken  belief  that  the  time  for  re- 
demption had  expired.  In  Granger  v.  Olcott,  1  Lans.  (N.  Y.)  169,  the  prin- 
ciple stated  in  the  text  was  r°cognized,  but  relief  was  refused  the  purchaser 
of  a  defective  tax  title  on  the  ground  that  the  parties  considered  the  title  to 
be  doubtful  when  the  contract  and  conveyance  were  made.  In  Goettel  v.  Sage, 
117  Pa.  St.  298;  10  Atl.  Rep.  889,  through  a  blunder  on  the  part  of  a  tax 
assessor,  land  had  been  sold  for  taxes  on  which  -none  were  in  fact  due.  The 
holder  of  the  tax  deed  sold  and'  conveyed  the  premises  to  a  third  person,  the 
parties  acting  upon  the  advice  of  an  attorney,  who  had  examined  the  title  and 
pronounced  it  good.  It  was  held  that  the  subject-matter  of  the  contract  hav- 
ing no  existence,  there  was  a  mistake  of  fact  which  entitled  the  purchaser  to 
relief.  In  Hyne  v.  Campbell,  6  T.  B.  Mon.  (Ky.)  286,  the  grantor  held  under 
a  conveyance  from  William  May,  whom  he  believed,  and  innocently  represented 
to  the  grantee,  to  have  been  the  patentee  of  the  land,  whereas  the  patent  had 
been  issued  to  George  May,  and  William  May  had  no  title  whatever.  The  con- 
veyance was  canceled  on  the  ground  of  mistake.  So,  also,  in  Bowlin  v.  Pol- 
lock, 7  T.  B.  Mon.  (Ky.)  26,  where  a  testator  devised  certain  public  lands 
which  he  claimed,  but  had  not  entered  upon  or  entitled  himself  to  a  patent 
when  he  died,  and  his  devisee  sold  and  conveyed  the  land,  all  parties  believing 
the  title  to  be  good.  In  Hurd  v.  Hall,  12  Wis.  112,  A.  purchased  certain 
school-laud  certificates,  in  ignorance  of  the  fact  that  they  were  void  because 
the  school  commissioners  had  not  complied  with  certain  provisions  of  the  law 
relating  to  such  sales,  and  it  was  held  that,  there  being  a  mistake  of  fact,  the 
purchaser  was  entitled  to  a  rescission  of  the  contract.  Cited  and  approved  in 
Lawton  v.  Howe,  14  Wis.  241 ;  Costigan  v.  Hawkins,  22  Wis.  74;  94  Am.  Dec. 
583;  Paul  v.  Kenosha,  22  Wis.  266;  94  Am.  Dec.  598. 


IN  CASES  OF  FBAUD  AND  MISTAKE.  861 

the  fact  that  a  deed  in  the  grantor's  chain  of  title  is,  for  any  reason, 
inoperative  to  pass  the  title.  In  such  a  case,  the  ignorance  of  the 
defect  is  no  ground  for  rescinding  the  contract,  for'one  of  the  chief 
purposes  of  taking  a  conveyance  with  general  warranty  is  to  pro- 
vide against  defects  of  title  of  which  the  parties  are  ignorant."  The 
words  "  mistake  of  fact,"  used  in  this  connection,  would  seem  to 
imply  some  particular  fact  or  facts  to  which  the  attention  of  the 
parties  was  specially  drawn,  and  which  must  be  supposed  to  have 
been  necessarily  contemplated  by  them  at  the  time  the  conveyance 
was  made.34  If  this  were  not  true,  any  conveyance  would  be  liable 

*•  Middlekauff  v.  Barrick,  4  Gill  (Md.),  290,  299.  Bates  v.  Delevan,  5  Paige 
(N.  Y.),  299.  Sutton  v.  Sutton,  7  Grat.  (Va.)  234;  56  Am.  Dec.  109.  See 
the  remarks  of  the  court  in  Kurd  v.  Hall,  12  Wis.  125,  133.  Trevino  v.  Cantu, 
61  Tex.  88,  where  it  is  said  that  covenants  are  intended  to  cover  such  cases. 
A  purchaser,  who  is  evicted  because  his  legal  adviser  overlooks  a  defect  in  the 
title,  cannot  rescind  the  contract  on  the  ground  of  mistake  and  recover  back 
the  purchase  money.  Urmston  v.  Pate,  cited  in  Wakeman  v.  Duchess  of  Rut- 
land, 3  Ves.  235,  n. 

The  reasoning  of  the  text  is  satisfactory  where  the  paramount  title  is  found 
to  be  in  a  stranger.  But  suppose  that  the  title  is  in  the  purchaser  himself, 
as  where  the  vendor  held  under  a  conveyance  from  a  married  woman  insuffi- 
ciently executed  and  acknowledged  to  pass  her  estate,  and  upon  her  death  her 
heir,  in  ignorance  of  the  facts,  purchased  the  estate  from  her  grantee,  and  took 
a  conveyance  without  warranty.  In  such  a  case,  according  to  the  authorities, 
there  is  no  doubt  that  equity  would  rescind  the  contract  at  the  suit  of  the 
purchaser;  yet  it  would  be  difficult  to  distinguish  such  a  case  from  one  ia 
which  the  title,  for  a  like  reason,  is  found  to  be  outstanding  in  a  stranger. 
See,  in  this  connection,  the  observation  of  Lord  COTTENHAM,  in  Stewart  T. 
Stewart,  6  Cl.  &  Fin.  968,  that  "  it  might  not  be  easy  to  distinguish  a  case 
where  the  purchaser  buys  his  own  estate  by  mistake  from  any  other  purchaser 
in  which  the  vendor  turns  out  to  have  no  title.  In  both  there  is  a  mistake,  and 
the  effect  of  it  on  both  is  that  the  vendor  receives  and  the  purchaser  pays  money 
without  the  intended  equivalent."  Without  attempting  to  discover  a  principle 
upon  which  the  two  cases  may  be  distinguished,  we  content  ourselves  with  stat- 
ing the  rule  as  we  find  it,  namely,  that  if  a  man  part  with  or  purchase  property 
in  ignorance  of  facts  showing  the  title  to  such  property  to  be  in  himself,  equity 
will  rescind  the  contract  and  restore  the  property  to  him,  or  relieve  him  from, 
any  liability  or  loss  incurred  in  the  premises.  Where  there  has  been  a  breach  of 
the  covenant  of  warranty,  there  generally  has  been  a  mistake  as  to  the  title 
of  the  grantor,  but  it  is  hardly  a  ground  on  which  the  grantor  can  expect  to 
be  relieved  of  his  covenant.  Language  of  the  court  in  Comstock  v.  Son,  154 
Mass.  389;  28  N.  E.  Rep.  596.  The  fact  that  the  grantor  believed  he  had  a 
good  title  cannot  relieve  him  from  liability  on  his  covenants.  Sanborn  T. 
Gunter,  (Tex.)  17  S.  W.  Rep.  117. 

"  It  is  scarcely  necessary  to  say  that  if  the  fact  rendering  void  the  title  is 
known  to  the  vendor  and  unknown  to  the  purchaser,  the  right  of  the  latter  to 


862  MARKETABLE  TITLE  TO  REAL  ESTATE. 

to  rescission  on  the  ground  of  mistake,  if,  after  it  had  been  exe- 
cuted, the  title  should  be  first  discovered  to  be  bad.35 

relief  is  grounded  not  so  much  upon  mistake  or  ignorance  of  facts  upon  his 
part  as  upon  a  fraudulent  concealment  of  the  facts  by  the  vendor.  1  Story's 
Eq.  Jur.  (13th  ed.)  §  147. 

85  In  Whittemore  v.  Farrington,  76  N.  Y.  452,  the  court  stated  the  facts  and 
the  law  thus :  "  The  question  is  then  reduced  to  this :  A  party  who,  under  a 
verbal  agreement  for  the  conveyance  to  him  of  lands  is  entitled  to  insist  upon 
a  good  title  and  a  deed  with  covenants,  pays  the  consideration  and  is  then  ten- 
dered a  deed  without  covenants.  He  demands  a  deed  with  covenants,  and  this 
is  refused.  He  then  accepts  the  deed  without  covenants,  and,  believing  the 
title  to  be  clear,  records  it  and  continues  to  occupy  and  improve  the  property. 
An  incumbrance  unknown  at  the  time  to  both  parties  is  afterwards  discovered. 
Both  parties  are  innocent  of  any  fraud.  It  is  conceded  that  no  legal  liability 
rests  upon  the  grantor  in  such  a  case.  Bates  v.  Delavan,  5  Paige  ( N.  Y. ) , 
300 ;  Burwell  v.  Jackson,  9  N.  Y.  535.  In  the  absence  of  fraud  or  covenants  a 
purchaser  takes  the  title  at  his  own  risk.  Then  do  the  facts  stated  entitle  the 
plaintiff  to  any  equitable  relief?  We  think  not.  The  theory  of  the  judgment 
is  that  the  acceptance  of  the  quit-claim  deed  in  performance  of  the  contract  of 
exchange  may  be  set  aside  on  the  ground  of  mistake,  and  the  contract  treated 
as  still  executory,  and  a  new  performance  in  a  different  manner  decreed.  The 
theory  is  ingenious,  but  is  not  founded  upon  any  legal  precedent  or  principle. 
In  the  first  place  there  was  no  mistake  as  to  the  character  of  the  deed  which 
was  tendered  and  accepted.  The  grantee  knew  that  by  accepting  it  he  took  the 
risk  of  any  defect  in  the  title  which  might  be  discovered.  He  was  not  led  into 
accepting  it  by  any  deception  or  suppression  on  the  part  of  the  grantor.  Sec- 
ondly, the  delivery  and  acceptance  of  the  deed  constituted  a  full  execution  of 
the  prior  parol  contract.  The  title  to  the  land  passed  under  the  deed,  and  the 
original  contract  was  merged  in  it.  After  a  contract  has  been  thus  fully  per- 
pormed,  there  can  be  no  jurisdiction  in  equity  to  decree  a  second  performance. 
In  a  proper  case  equity  has  jurisdiction,  on  the  ground  of  mistake,  to  reform 
the  instrument  or  deed  by  which  a  prior  contract  has  been  executed  or  per- 
formed, but  to  authorize  the  exercise  of  this  jurisdiction  there  must  have  been 
a  mutual  mistake  as  to  the  contents  of  the  instrument  sought  to  be  reformed, 
or  else  mistake  on  one  part  and  fraud  upon  the  other.  Where  both  parties  are 
innocent  of  fraud,  and  both  know  the  character  and  contents  of  the  instrument, 
it  cannot  be  reformed  in  equity  merely  on  the  ground  that  one  of  the  parties 
would  have  exacted  and  would  have  been  entitled  to  exact  a  different  instru- 
ment had  he  been  acquainted  with  facts  rendering  it  to  his  interest  to  do  so, 
or  which,  if  he  had  known  them,  would  have  caused  him  to  reject  the  instru- 
ment which  he  accepted.  It  is  beyond  the  power  even  of  a  court  of  equity  to 
make  contracts  for  parties.  The  jurisdiction  to  reform  written  instruments  in 
cases  free  from  fraud  is  exercised  only  where  the  instrument  actually  executed 
differs  from  what  both  parties  intended  to  execute  and  supposed  they  were 
executing  or  accepting,  and  this  mistake  will  be  corrected  in  equity  only  on 
the  clearest  proof,  and  then  only  by  making  the  instrument  conform  to  what 
both  parties  intended.  But  an  instrument  or  covenant,  the  nature  and  con- 
tents of  which  are  fully  comprehended  by  both  parties  at  the  time  of  its  exe- 


IN  CASES  OF  FBAUD  AND  MISTAKE.  863 

If  a  man  purchase  his  own  estate  in  ignorance  of  facts  which 
would  show  his  right,  he  will  be  relieved  in  equity."  Thus,  if  an 
heir  were  to  take  a  conveyance  of  his  own  inheritance,  ignorant  of 
the  fact  that  he  was  heir,  there  is  no  doubt  that  equity  would 
rescind  the  contract. 

It  has  been  held  that  the  purchaser  cannot  recover  back  the  pur- 
chase money  in  a  court  of  law  where  there  is  a  mutual  mistake  as 
to  title,  and  that  his  remedy  is  in  equity  by  suit  for  rescission,  the 
reason  being  that  the  grantor  cannot  recover  back  the  purchase 
money  and  at  the  same  time  retain  the  legal  title.87  Of  course, 

cution,  cannot  be  altered  in  its  terms  By  the  court.  See  Wilson  v.  Deen,  74  N. 
Y.  531,  and  authorities  there  cited.  If  the  decision  of  the  trial  court  in  this 
case  can  be  sustained,  any  purchaser  of  lands  who  accepts  a  deed  without 
covenants  may  have  recourse  against  his  grantor  for  a  subsequently-discovered 
incumbrance  or  defect  in  the  title,  provided  he  can  show  that  under  his  con- 
tract of  purchase  he  might  have  insisted  on  a  deed  with  covenants,  and  that  he 
believed  the  title  to  be  clear  when  he  accepted  one  without  covenants.  If  the 
grantor  and  grantee  had  both  intended  that  this  deed  should  contain  cove- 
nants, and  supposed  at  the  time  of  its  delivery  that  it  did  contain  them,  but 
through  a  mistake  of  the  scrivener  they  had  been  omitted,  the  court  might 
insert  them." 

M  1  Sugd.  Vend.  (14th  Eng.  ed.)  245.  Bingham  v.  Bingham,  1  Ves.  Sen.  126; 
Cooper  v.  Phibbs,  L.  R.,  2  H.  L.  170.  These,  however,  were  cases  in  which  the 
mistake  was  rather  as  to  the  law  applicable  to  known  facts  than  mistake  as  to 
the  facts  themselves.  The  rule  is  thus  broadly  stated  by  Lord  ST.  LEONARDS 
(1  Sugd.  Vend.  [8th  Am.  ed.]  533)  :  "  If  a  person  having  a  right  to  an  estate 
purchase  it  of  another  person,  being  ignorant  of  his  own  title,  equity  will 
compel  the  vendor  to  refund  the  purchase  money  with  interest,  though  no 
fraud  appears."  It  is  obvious  that  such  "  ignorance  of  title  "  may  consist  in 
ignorance  not  of  the  fact  of  title,  but  of  a  fact  or  facts  on  which  the  title 
depends,  or  of  ignorance  of  the  law  applicable  to  known  facts  respecting  the 
title.  Little  distinction  seems  to  have  been  made  between  igno'rance  of  fact 
and  ignorance  of  law  in  cases  in  which  the  party  has  acted  upon  the  mistaken 
belief  that  he  had  no  interest  in  the  premises.  Newl.  Cont.  in  Eq.  ch.  28,  432. 
See,  also,  Fitch  v.  Baldwin,  17  Johns.  (N.  Y.)  161.  ^"here  A.  set  up  an 
adverse  claim  to  certain  land  and  afterwards  compromised  it,  and  a  deed  was 
made  to  him  upon  valuable  consideration  to  be  paid  by  him,  the  fact  that  at 
the  time  of  the  compromise  his  claim  had  ripened  into  a  perfect  title  under  the 
Statute  of  Limitations,  was  held  not  to  entitle  A.  to  rescind  the  contract  and 
detain  the  consideration.  Little  v.  Allen,  56  Tex.  133. 

37  Homer  v.  Purser,  20  Ala.  573.  The  reason  assigned  in  this  case  was  that 
the  legal  title  to  the  land  was  still  in  the  plaintiff,  and  that  he  could  not 
recover  back  the  purchase  money  and  retain  the  legal  title.  The  fact  was 
that  the  vendor,  intending  to  convey  a  lot  belonging  to  himself,  conveyed  one 
by  mistake  belonging  to  a  stranger,  who  was  in  possession,  and  the  grantee 
never  had  possession.  Under  such  circumstances,  at  the  first  glance  a  recon- 


864  MARKETABLE  TITLE  TO  REAL  ESTATE. 

such  an  action  may  be  maintained  in  those  States  in  which  the 
distinction  between  legal  and  equitable  jurisdiction  no  longer 
exists,  or  where  the  courts  have  power  to  enter  judgment  with  a 
condition  that  it  shall  not  operate  until  the  plaintiff  reconveys  the 
premises  to  the  grantor.  And,  also,  where  no  such  land  is  in 
existence  as  that  which  the  deed  purports  to  convey.38 

The  fact  that  lands  which  are  no  part  of  the  premises  actually 
purchased,  and  to  which  the  vendor  has  no  title,  are  by  mistake 
included  in  the  conveyance,  is  no  ground  for  a  rescission  of  the 
contract  on  the  application  of  the  grantee.39  If  by  mistake  there 
be  no  such  land  as  the  deed  purports  to  convey,  the  grantee  may 
rescind  the  contract  and  recover  back' the  purchase  money,  whether 
the  deed  was  with  or  without  covenants  for  title.40  The  acceptance 
of  a  deed  which,  by  mistake,  does  not  convey  the  lands  purchased 
does  not  preclude  the  grantee  from  detaining  the  purchase  money 
nor  from  recovering  it  back.  But  if  the  deed  conveyed  lands  not 
intended  to  be  included  therein,  the  grantee  would,  of  course,  be 
required  to  reconvey  the  same.41  And  it  may  be  stated,  as  a  general 
rule,  that  the  grantee  cannot  maintain  an  action  to  recover  back 
the  purchase  money  on  the  ground  of  mistake  in  a  deed  which  may 
be  reformed,  unless  he  has  first  applied  to  the  grantor  for  a  cor- 
rection of  the  error.42  Of  course,  if  the  land  conveyed  be  not  that 

veyance  would  seem  unnecessary.  If,  however,  the  grantor  had  conveyed  with 
general  waranty  and  had  afterwards  acquired  title  to  the  premises,  it  would 
inure  to  the  benefit  of  the  grantee;  hence  the  necessity  of  a  reconveyance. 

»DTJtricht  v.  Melchior,  1  Dall.   (Pa.)  428. 

"Butler  v.  Miller.  15  B.  Mon.   (Ky.)   617. 

40DTJtricht  v.  Melchior,  1  Dall.  (Pa.)  429.  Marwin  v.  Bennett,  8  Paige 
Ch.  (N.  Y.)  311.  In  Morse  v.  Elmendorff,  11  Paige  Ch.  (N.  Y.)  277,  it  ap- 
peared that  the  parties  contracted  for  the  sale  and  conveyance  of  a  supposed 
gore  of  land  which  had  in  fact  no  existence,  there  being  a  mistake  by  both 
parties  as  to  that  fact.  It  was  held  that  the  vendor  could  not  compel  spe- 
cific performance  by  the  purchaser,  and  neither  could  the  latter  require  the 
vendor  to  convey  an  adjoining  lot  of  land  to  which  he  had  title. 

41  Frazier  v.  Tubb,  2  Heisk.  (Tenn.)  662.  The  fact  that  a  deed,  by  mistake, 
does  not  convey  the  land  intended  to  be  conveyed,  does  not  avoid  the  deed ;  and 
the  grantee  may  recover  on  a  covenant  of  seisin  therein  contained  without  first 
having  the  deed  reformed.  Calton  v.  Lewis,  119  Ind.  181;  21  N.  E.  Rep.  475: 
Poehl  v.  Haumesser,  114  Ind.  311;  15  N.  E.  Rep.  345;  Gordon  v.  Goodman,  98 
Ind.  269. 

41  Johnson  v.  Houghton,  19  Ind.  359.  See  ante,  ch.  12,  "Reformation  of 
Deeds." 


IN    CASES    OF    FEAUD    AND    MISTAKE.  865 

-which  was  purchased,  the  grantee  will  be  relieved  in  equity ;  and  it 
is  immaterial  in  such  cases  whether  the  conveyance  was  with  or 
without  covenants  of  title.43  On  the  other  hand,  if  the  vendee  gets 
the  land  he  actually  purchased,  the  fact  that  it  is  misdescribed  in 
the  contract  will  not  entitle  him  to  rescind  until  he  has  given  the 
vendor  an  opportunity  to  correct  the  mistake,  and  the  latter  refuses 
so  to  do.44 

The  rule  that  the  grantee  on  rescission  of  the  contract  must  re- 
convey  and  restore  the  premises  to  the  grantor  and  place  him  sub- 
stantially in  statu  quo,  applies  as  well  where  the  contract  is  re- 
scinded on  the  ground  of  mistake  as  for  other  reasons.  On  dis- 
covery of  the  mistake  the  purchaser  has  the  right  to  elect  to  rescind 
and  reconvey,  or  to  affirm  the  contract,  pay  the  purchase  money, 
and  look  to  his  covenants  for  relief.46  But  it  has  been  held  that  if 
by  mutual  mistake  a  part  of  the  warranted  premises  is  embraced 
within  the  limits  of  an  older  and  superior  grant,  the  purchaser  is 
entitled  to  detain  the  purchase  money  or  to  recover  it  back  pro 
lanlo  without  offering  to  restore  the  premises  to  the  grantor.4* 

§  341.  Negligence  of  purchaser.  If  by  reasonable  diligence 
the  party  seeking  relief  on  the  ground  of  mistake  of  fact  could 
have  been  correctly  informed  as  to  such  fact  he  will  not  be 
entitled  to  relief.  The  mistake  must  not  have  arisen  from  negli- 
gence, the  means  of  knowledge  being  easily  accessible.47  Thus  it  is 
apprehended  that  the  purchaser  could  not  complain  that  there  was 
a  mutual  mistake  of  the  parties  as  to  the  sufficiency  of  the  title, 
if  it  could  be  discovered  from  the  public  records  that  the  paramount 

4'Kyle  v.  Kavanaugh,  103  Mass.  356;  4  Am.  Rep.  560;  Spurr  v.  Benedict,  99 
Mass.  463. 

"Lamkin  v.  Reese,  7  Ala.  170,  citing  Long  v.  Brown,  4  Ala.  622;  Evans  v. 
Boiling,  5  Ala.  550. 

45  Sandford  v.  Travis,  7  Bosw.  (N.  Y.)  498;  Crosier  v.  AWT.  7  Paige  (N.  Y.), 
137.     In  a  case  in  which  it  appeared  that  the  situation  of  the  parties  had  so 
materially  changed  in  consequence  of  the  lapse  of  time,  that  the  defendant 
could  not  be  placed  in  statu  quo,  rescission  was  denied.    Mullreed  v.  Clarft,  119 
Mich.  578 ;  78  N.  W.  Rep.  658. 

46  Doyle  v.  Hord,  67  Tex.  621 ;  4  S.  W.  Rep.  241 ;  Gass  v.  Sanger,  (Tex.  Civ. 
App.)  30  S.  W.  Rep.  502. 

«Bispham's  Eq.  (3d  ed.)  5  191;  Story  Eq.  Jur.   (13th  ed.)  p.  153;  Kerr  F 
&  M.  407.    Trigg  v.  Reade,  5  Humph.  (Tenn.)  541 ;  42  Am.  Dec.  447.    Norman 
v.  Norman,  26  S.  C.  41 ;  11  S.  E.  Rep.  1096. 
55 


866  MARKETABLE  TITLE  TO  REAL  ESTATE. 

title  was  outstanding  in  a  stranger;  for  example,  if  there  was  a 
conveyance  of  the  premises  by  the  vendor's  grantor  on  record  prior 
to  that  under  which  the  vendor  held.48 

§  342.  Immaterial  mistakes.  The  mistake  as  to  a  matter  of 
fact  which  will  entitle  the  purchaser  to  relief  must  be  material. 
The  fact  must  have  been  essential,  and  not  merely  incidental,  to 
the  validity  of  the  contract,  and  the  mistake  must  have  been  such 
that  but  for  it  the  purchaser  would  not  have  accepted  ihe  title,  or 
rh.e  vendor  have  parted  with  his  rights.49 

§  343.  Mistakes  as  to  quantity.  Mistakes  in  the  quantity  cf 
land  conveyed  have  frequently  been  made  the  ground  of  applica- 
tion by  the  purchaser  for  relief,  either  in  the  rescission  of  the  en- 
tire contract  or  in  the  ratable  abatement  of  the  purchase  money. 
Ordinarily  no  question  of  title  is  involved  when  the  grantee  merely 
complains  that  the  boundaries  set  forth  in  the  deed  do  not  contain 
the  number  of  acres  therein  purported  to  be  conveyed,  or  which 
the  purchaser,  under  the  contract,  is  entitled  to  require.50  If,  how- 
ever, there  be  a  mutual  mistake  as  to  the  location  of  adjoining- 
surveys,  by  which  the  land  is  encroached  upon,  the  title  to  the  full 
tract  bargained  for  does  not  pass,  and  the  purchaser  is  entitled 
to  relief,  though  the  conveyance  was  without  warranty.51 

48  The  case  of  Hitchcock  v.  Giddings,  4  Price,  135,  where  the  purchaser  took 
a  conveyance  from  a  remainderman  in  ignorance  that  the  remainder  had  been 
barred,  has  been  doubted  by  Sir  EDWARD  SUGDEN  on  this  ground.  The  pur- 
chaser might  have  ascertained  the  fact  by  a  search.  1  Sugd.  Vend.  (8th  Am. 
ed. )  376  (247).  It  is  not  easy  to  distinguish  such  a  case  from  any  other  in 
which  the  title  of  the  grantor  turns  out  to  have  been  entirely  worthless  at  the 
time  of  the  contract.  There  would,  however,  seem  to  be  no  room  for  the  appli- 
cation of  the  doctrine  of  mistake  in  a  case  in  which  the  vendor  was  in  pos- 
session and  prima  facie  owner  of  the  estate.  If  there  were,  a  covenant  of 
warranty  would  be  a  useless  formality.  In  Campbell  v.  Carter,  14  111.  286,  a 
creditor  who  had  a  lien  on  the  land  of  his  debtor  took  the  land  in  satisfaction 
of  the  debt,  and  entered  satisfaction  of  his  lien  on  the  record,  in  ignorance  ot 
a  junior  incumbrance  on  the  premises.  It  was  held  that  he  was  not  entitled 
to  relief  on  the  ground  of  mistake,  as  against  the  junior  incumbrancer,  nor 
to  reinstate  the  lien  which  he  had  released. 

"Kerr  F.  &  M.  408;  Bishop's  Eq.  (3d  ed.)  §191;  1  Story  Eq.  Jur.  (13th 
ed.)  §  141.  Trigg  v.  Reade,  5  Humph.  (Tenn.)  529;  42  Am.  Dec.  447;  Grymcs 
v.  Saunders,  93  U.  S.  55. 

50  Thompson  v.  Jackson,  3  Rand.    (Va.)    504,  509;    15  Am.  Dec.   721.     See 
Zuenker  v.  Kuehn,  113  Wis.  421;  88  N.  W.  Rep.  605. 

51  Moore  v.  Hazelwood,  67  Tex.  624,  citing  Daughtry  v.  Knolle,  44  Tex.  450 ; 
O'Connell  v.  Duke,  29  Tex.  300;  94  Am.  Dec.  282;  Smith  v.  Fly,  24  Tex.  345;. 


IN  CASES  OF  FRAUD  AND  MISTAKE.  867 

§  344.  MISTAKE  OF  LAW.  General  principles.  (2)  The  second 
class  of  cases  in  which  relief  on  the  ground  of  mistake  as  to  the 
title  has  been  sought  by  the  purchaser,  consists  of  those  in  which 
the  parties  were  correctly  informed  of  all  the  facts  material  to  the 
validity  of  the  title,  but  were  mistaken  in  their  application  of  the 
law  to  those  facts ;  in  other  words,  cases  in  which  relief  is  asked  on 
the  ground  of  a  mistake  of  the  law.  This  is  a  much  vexed  question. 
It  is  a  legal  maxim  that  ignorance  of  the  law  excuses  no  one,  and 
again,  that  every  one  is  presumed  to  know  the  law.  It  would  be 
extremely  inconvenient  to  permit  a  party  to  set  up  a  defense  of 
ignorance  or  mistake  of  the  law,  because  such  a  rule  would  en- 
courage the  parties  to  be  careless  in  ascertaining  their  legal  rights 
at  the  time  of  entering  upon  the  contract ;  and  further,  because  it 
would  be  a  great  inducement  to  fraud  and  perjury,  if  an  un- 
scrupulous party  knew  that  he  might  at  any  time  escape  the  obliga- 
tion of  his  contract  by  declaring  his  ignorance  of  the  law  in  the 
premises.  Consequently  it  has  been  decided  in  many  cases  that 
ignorance  or  mistake  of  the  law  affecting  the  validity  of  the  title 
to  real  estate  is  no  ground  for  relieving  the  purchaser  from  his 
bargain.52 

76  Am.  Dec.  109.  In  Brooks  v.  Riding,  46  Ind.  15,  it  appeared  that  both  the 
grantor  and  grantee  were  ignorant  of  the  faet  that  five  feet  of  the  width  of  the 
property  sold  was  a  part  of  an  adjacent  street.  The  purchase  money  was 
abated  to  the  extent  of  the  value  of  the  five  feet  lost.  See,  also,  2  Warvelle 
Vend.  840.  In  Butcher  v.  Peterson,  26  W.  Va.  447,  the  covenantee  was  evicted 
from  a  portion  of  the  premises,  and  the  covenantor  claimed  that  as  there  was 
a  mutual  mistake  of  the  parties  as  to  the  title  to  that  part  the  entire  contract 
must  be  rescinded,  but  the  court  held  that  the  covenantee  might  keep  that 
part  to  which  the  title  was  good,  and  have  an  abatement  of  the  purchase  money 
as  to  the  other  part. 

•»!  Fonbl.  Eq.  ch.  2,  §  7.  1  Story  Eq.  Jur.  (13th  ed.)  §  137,  where  it  is 
said  that  whatever  exceptions  there  may  be  to  the  rule  are  not  only  few  in 
number,  but  will  be  found  to  have  something  peculiar  in  their  character,  and 
to  involve  other  elements  of  decision.  Shotwell  v.  Murray,  1  Johns.  Ch.  (N. 
Y.)  512,  one  of  Chancellor  KENT'S  decisions,  is  a  leading  case  on  this  point. 
A.  purchased  at  an  execution  sale  to  enforce  a  judgment  lien.  There  wa*  a 
prior  judgment  binding  the  land,  but  the  judgment  creditor  was  the  same  in 
both  cases,  and  of  that  fact  the  purchaser  was  informed.  After  the  first  wil 
an  execution  was  issued  under  the  senior  judgment,  and  agninst  this  the  pnr 
chaser  sought  an  injunction,  claiming  that  he  was  mistaken  in  believing  tl 
one  judgment  to  be  merged  in  the  other.  Relief  was  denied  on  the  ground  that 
the  mistake  was  merely  one  of  law.  So,  in  Norman  v.  Norman,  26  S 


868  MARKETABLE  TITLE  TO  EEAL  ESTATE. 

On  the  other  hand,  there  have  been  many  cases  in  which  parties 
have  been  permitted  to  avail  themselves  of  a  mistake  of  the  law 
relating  to  their  private  rights.  Most  of  these  cases,  so  far  as  they 
have  arisen  between  vendor  and  purchaser,  have  been  those  in 

11  S.  E.  Rep.  1096,  it  was  held  that  a  purchaser  at  a  sale  under  a  judgment 
bidding  in  the  mistaken  belief  that  the  lien  of  the  judgment  was  superior  to 
that  of  a  mortgage  lien  of  record,  could  not  be  relieved  from  his  bid.  In 
McMurray  v.  St.  Louis  Oil  Co.,  33  Mo.  377,  the  purchaser  bought  at  a  sale 
under  a  judgment  which  was  void  because  confessed  by  the  president  of  a  cor- 
poration, no  process  having  been  served  upon  him.  The  purchaser  Avas  aware 
of  the  facts,  but  ignorant  that  the  judgment  was  void.  Relief  was  denied.  In 
McAninch  v.  Laughlin,  13  Pa.  St.  370,  the  purchaser  was  aware  of  all  the  facts, 
but  mistaken  as  to  the  right  of  a  widow  to  claim  dower  in  the  land,  and  relief 
on  the  ground  of  mistake  was  refused.  The  fact  that  a  purchaser  at  a  judicial 
sale  was  ignorant  of  the  want  of  jurisdiction  in  the  court  to  decree  the  sale, 
will  not  excuse  him  from  payment  of  the  purchase  money,  after  confirmation 
of  the  sale.  Burns  v.  Hamilton,  33  Ala.  210;  50  Am.  Dec.  570.  This  seems  a 
great  hardship.  We  have  seen,  however,  that  in  cases  in  which  the  proceeds 
of  the  sale  went  to  the  discharge  of  liens  or  charges  upon  the  land,  the  pur- 
chaser, as  a  general  rule,  is  subrogated  to  the  benefit  of  the  lien.  Ante,  §  204. 
In  Smith  v.  Winn,  (So.  Car.)  17  S.  E.  Rep.  717,  it  was  held  that  a  purchaser's 
mistake  in  supposing  that  a  contingent  remainderman  'Vas  not  a  necessary 
party  to  a  suit  for  the  sale  of  an  estate,  did  not  entitle  him  to  relief.  Upon 
the  general  proposition  that  mistake  of  the  law,  whether  relating  to  title  or  to 
other  matters,  furnishes  no  ground  for  relief,  see  Hunt  v.  Rousmaniere,  1  Pet. 
(U.  S.)  1  (this  case  has  been  cited  both  ways).  Lyon  v.  Richmond,  2  Johns. 
Ch.  (N.  Y.)  51 ;  Storrs  v.  Barker,  6  Johns.  Ch.  (N.  Y.)  169;  10  Am.  Dec.  316, 
per  KENT,  Ch.;  Wheaton  v.  Wheaton,  9  Cow.  (N.  Y.)  96.  Gwynn  v.  Hamilton, 
29  Ala.  233.  Good  v.  Herr,  7  W.  &  S.  (Pa.)  253;  42  Am.  Dec.  236.  In  Bank 
of  U.  S.  v.  Daniel,  12  Pet.  (U.  S.)  55,  it  was  said:  "Vexed  as  the  question 
formerly  was,  and  delicate  as  it  now  is,  from  the  confusion  in  which  numerous 
nnd  conflicting  decisions  have  involved  it,  no  discussion  of  cases  can  be  gone 
into,  without  hazarding  the  introduction  of  exceptions  which  will  be  likely  to 
sap  the  direct  principle  we  intend  to  apply;  indeed,  the  remedial  power 
claimed  by  courts  of  chancery  to  relieve  against  mistakes  of  law,  is  a  doctrine 
rather  grounded  upon  exceptions,  than  upon  established  rules.  To  this  course 
of  adjudication  we  are  unwilling  to  yield.  That  mere  mistakes  of  law  are  not 
remedial  is  well  established,  as  was  declared  by  this  court  in  Hunt  v.  Rous- 
mainiere,  1  Pet.  (U.  S. )  15,  and  we  can  only  repeat  what  was  there  said: 
'  That  whatever  exceptions  there  may  be  to  the  rule  will  be  found  few  in  num- 
ber, and  to  have  something  peculiar  in  their  character,'  and  to  involve  other 
elements  of  decision."  Story  Eq.  Jur.  (13th  ed.)  §  137.  For  a  contrary  and 
recent  expression  of  opinion  on  this  point  by  the  Supreme  Court  of  the  United 
States,  see  Griswold  v.  Hazard,  141  U.  S.  260.  See  Kyle  v.  Febley.  81  Wis. 
67.  61  N.  W.  Rep.  257.  Judge  STOBY  closes  his  review  of  the  cases  upon  this 
point  with  the  following  observations :  "  We  have  thus  gone  over  the  prin- 
cipal cases  supposed  to  contain  contradictions  of.  or  exceptions  to,  the  generaf 


IN    CASES    OF    FRAUD    AND    MISTAKE.  869 

which  relief  was  sought  by  the  vendor  or  grantor  on  the  ground 
that  he  had  parted  with  his  estate  or  interest  in  the  premises  under 
a  mistake  of  law  as  to  the  quantity  and  extent,  or  even  the  exist- 
ence, of  that  interest.63  And  in  some  cases  the  purchaser  has  been 
relieved  from  the  obligation  of  his  contract  on  the  ground  of  a 
mutual  mistake  of  the  law  in  respect  to  some  fact  upon  which  the 
validity  of  the  title  he  was  to  receive  depended.64  The  principle 
upon  which  relief  was  granted  was  the  same  in  either  case. 

rule,  that  ignorance  of  the  law,  with  a  full  knowledge  of  the  facts,  furnishes 
no  ground  to  rescind  agreements  or  to  set  aside  solemn  acts  of  the  parties. 
Without  undertaking  to  assert  that  there  are  none  of  these  cases  which  are 
inconsistent  with  the  rule,  it  may  be  affirmed  that  the  real  exceptions  to  it 
are  very  few,  and  generally  stand  upon  some  very  urgent  pressure  of  circum- 
stances." Eq.  Jur.  (13th  ed.)  §  137. 

13 1  Story  Eq.  Jur.  §  121.  Landsdowne  v.  Landsdowne,  Mos.  3(54;  2  Jac.  4 
W.  205;  Naylor  v.  Winch,  1  Sim.  &  Stu.  555;  Turner  v.  Turner,  2  Ch.  Rep.  81. 
Kornegay  v.  Everett,  99  N.  C.  30,  34;  5  S.  E.  Rep.  418.  This  rule  was  applied 
in  Lammot  v.  Bowly,  6  Harr.  &  J.  (Md.)  500,  where  one  parted  with  property 
upon  a  misconstruction  of  the  legal  effect  of  a  devise.  So,  also,  in  Irick  v.  Ful- 
ton, 3  Grat.  (Va.)  193,  which  was  a  suit  by  the  vendor  to  rescind,  she  having 
conveyed  her  entire  interest  in  the  premises,  supposing  it  to  be  an  undivided 
moiety,  when,  in  fact,  she  owned  the  whole  as  surviving  joint  tenant,  /oilman 
v.  Moore,  21  Grat.  (Va.)  313,  324,  apparently  conflicts  with  this  case,  but  is 
distinguished  from  it  by  STAPLES,  J.,  who  points  out  that,  in  the  first  case,  the 
purchaser  bought  only  one-half  of  the  estate  and  got  the  whole,  while  in  the 
case  at  bar  the  purchaser  believed  he  was  buying,  and  actually  paid  for,  the 
whole.  This  fact,  of  course,  would  make  a  difference  fti  the  vendor's  measure 
of  relief,  but  it  is  not  clearly  perceived  how  any  change  in  the  principle  upon 
which  r-elief  should  be  afforded,  is  thereby  produced.  In  the  latter  case  the 
vendor  would  not  be  permitted  to  rescind,  without  refunding  the  purchase 
money  for  that  part  of  the  estate  which  the  purchaser  loses. 

64  Fry  Sp.  Perf.  (3d  Am.  ed.)  §  768;  15  Am.  A  Eng.  Encyc.  of  L.  034.  State 
V.  Paup,  13  Ark.  129;  56  Am.  Dec.  303.  The  leading  English  case  upon  the 
point  is  Bingham  v.  Bingham,  1  Ves.  Sen.  126;  Betts'  Supp.  79.  The  plaintiff 
held  under  a  devise  from  A.,  and  having  been  persuaded  by  the  defendant  and 
a  scrivener  that  A.  had  no  power  to  devise,  and  that  the  title  was  in  defendant, 
purchased  his  alleged  interest  for  eighty  pounds.  Afterwards  he  brought  his 
bill  in  equity  to  rescind  the  contract,  alleging  that  all  parties  were  mistaken  in 
their  belief  that  the  devise  was  invalid.  The  contract  was  rescinded  and  the 
restoration  of  the  purchase  money  decreed.  Mr.  Pomeroy  (2  Eq.  Jur.  $  849) 
concedes  that  relief  should  be  afforded  in  such  a  case,  but  treats  the  mistake 
as  one  of  fact.  He  formulates  this  rule:  "  Wherever  a  person  is  ijniornnt  or 
mistaken  with  respect  to  his  own  antecedent  and  existing  private  logal  rights, 
interests,  estates,  duties,  liabilities,  or  other  relations,  either  of  projwrty,  or 
of  contract,  or  of  personal  status,  and  enters  into  some  transaction  the  legal 
scope  and  operation  of  which  he  correctly  apprehends  and  understands,  for  the 


870  MABKETABLE  TITLE  TO  REAL  ESTATE. 

§  345.  Distinction  between  ignorance  of  law  and  mistakes 
of  law.  In  some  cases  a  distinction  has  been  drawn  between  mere 
ignorance  of  the  law  and  mistakes  of  the  law,  relief  being  refused 

purpose  of  affecting  such  assumed  rights,  interests,  or  relations,  or  of  carrying 
out  such  assumed  duties  or  liabilities,  equity  will  grant  its  relief,  defensive  or 
affirmative,  healing  the  mistake  as  analogous  to,  if  not  identical  with,  a  mis- 
take of  fact."  All  of  this  seems  capable  of  reduction  to  the  simple  observation 
by  Judge  STORY  (1  Eq.  Jur.  [13th  ed.]  §  122),  that  where  the  party  acts  upon 
the  misapprehension  that  he  has  no  title  at  all  in  the  property,  it  seems  to 
involve  in  some  measure  a  mistake  of  fact,  that  is,  of  the  fact  of  ownership 
arising  from  a  mistake  of  law."  But  the  learned  judge  does  not  commit  him- 
self to  this  view,  for  he  asks  in  a  note,  "  Is  ignorance  of  the  title  when  all  the 
facts  on  which  it  legally  depends  are  known,  ignorance  of  a  fact  or  of  law?" 
There  is  some  plausibility  in  the  idea  that  ignorance  of  title  resulting  from 
ignorance  of  a  particular  law  on  which  the  title  depends,  is  a  mistake  of  fact ; 
in  one  sense  it  undoubtedly  is,  but  that  is  in  the  same  sense  in  which  it  might 
be  said  that  ignorance  of  a  particular  law  is  ignorance  of  the  fact  that  such 
a  law  exists,  and  that,  of  course,  is  a  palpable  sophism  when  applied  to  the 
question  under  consideration.  If  a  stranger  comes  to  our  shores,  parts  with 
his  inheritance  or  incurs  a  liability  upon  the  assumption  that  the  law  of 
primogeniture  exists  among  us,  can  any  one  doubt  that  this  is  a  mistake  of 
law  pure  and  simple?  Judge  STORY  says:  "A  party  can  hardly  be  said  to 
intend  to  part  with  a  right  or  title  of  whose  existence  he  is  wholly  ignorant " 
(Eq.  Jur.  [13th  ed.]  p.  131),  and  if  to  that  should  be  added  "whether  such 
ignorance  arise  from  mistake  of  a  particular  fact  or  from  mistake  of  a  particu- 
lar law,"  we  would  have  what  is  believed  to  be  a  true  expression  of  the  rule 
to  be  deduced  from  many  decisions.  See  Prof.  Bigelow's  note,  Story's  Eq.  Jur. 
(13th  ed.)  p.  112.  In  Lowndes  v.  Chisholm,  2  McCord  Ch.  (S.  C.)  455;  16 
Am.  Dec.  667.  a  mortgagee  obtained  a  judgment  against  the  mortgagor  and  sold 
the  premises  under  a  fi.  fa.  without  foreclosing  the  mortgage.  The  purchaser 
was  aware  of  the  facts,  but  was  mistaken  as  to  the  law,  by  which  he  acquired 
only  the  mortgagor's  equity  of  redemption  instead  of  the  fee.  It  was  held 
that  he  was  entitled  to  rescind.  In  Champlin  v.  Laytin,  6  Paige  Ch.  (N.  Y.) 
197 ;  31  Am.  Dec.  382,  the  grantor  conveyed  a  lot  embraced  within  the  bounds 
of  a  public  street  which  had  been  laid  out  on  a  map  but  not  opened.  The 
parties  were  aware  of  the  facts,  but  mistaken  as  to  the  legal  right  of  the  owner 
of  the  land  so  conveyed,  to  receive  compensation  for  it  when  the  street  should 
be  opened.  There  was  in  fact  no  such  right  of  compensation,  and  the  contract 
was  rescinded  on  the  ground  of  mistake  of  law.  In  Lawrence  v.  Beaubien, 
2  Bailey  L.  (S.  C.)  623;  23  Am.  Dec.  155,  real  property  had  been  devised 
to  an  alien,  and  the  devisee,  apprehensive  that  the  devise  was  void  and  that 
the  property  would  pass  to  the  heir,  executed  a  bond  to  the  latter  in  consid- 
eration of  a  release  of  all  his  rights  in  the  premises.  The  devise,  however, 
was  valid,  and  the  devisee  was  permitted  to  show  that  he  was  mistaken  as  to 
the  law  in  that  respect,  and  relieved  from  his  liability  on  the  bond.  On  the 
general  proposition  that  equity  will  relieve  against  a  plain  mistake  of  the 
law,  see  1  Beach  Mod.  Eq.  Jur.  §  35;  Kerr  F.  &  M.  (Bump's  ed.)  398;  2  War- 
velle  Vend.  756;  Fry  on  Sp.  Perf.  (3d  Am.  ed.)  768;  Bispham's  Eq.  (3d  ed.) 


IN    CASES    OF    FRAUD    AND    MISTAKE.  871 

in  the  former  case  and  granted  in  the  latter.55  One  of  the  principal 
reasons  why  a  party  will  not  be  heard  to  allege  his  ignorance  of  the 
law  in  support  of  his  demand  or  defense,  is  that  there  is  in  most 

§  187;  Prof.  Bigelow's  note,  Story's  Eq.  Jur.  (13th  ed.)  p.  112,  and  the  same 
writer's  monograph  "  Mistake  of  Law  as  a  Ground  of  Equitable  Relief,"  1  L, 
Quart.  Rev.  298.  Drew  v.  Clarke,  Cook  (Tenn.),  374.  Fitzgerald  v.  Peck, 
4  Litt.  (Ky.)  125.  Benson  v.  Markoe,  37  Minn.  30;  33  N.  W.  Rep.  38.  In 
Griswold  v.  Hazard,  141  U.  S.  260,  284,  a  surety  on  a  bail  bond  in  a  civil  suit 
was  permitted  to  show  that  it  was  understood  by  him  at  the  time  the  bond 
was  given  that  he  was  to  be  liable  only  in  case  the  defendant  did  not  appear 
before  the  court  at  the  time  specified  in  the  bond,  and  that  he  was  not  to  be  a 
surety  for  the  payment  of  any  judgment  or  decree  for  money  which  might  be 
pronounced  against  the  defendant,  though  the  undertaking  of  the  surety  was 
"  to  abide  arid  perform  the  decrees  and  orders  of  the  court."  The  penalty 
of  the  bond  was  $53,000,  and  the  surety,  a  stranger  to  the  defendant,  had  exe- 
cuted it  at  the  request  of  a  mutual  friend,  and  as  a  matter  of  courtesy  and 
good  will.  This  was  a  case  of  much  difficulty.  BROWN,  J.,  rendered  a  dissent- 
ing opinion. 

"Lawrence  v.  Beaubien,  2  Bailey  L.  (S.  C.)  623;  23  Am.  Dec.  155;  Lowndea 
v.  Chisholm,  2  McCord  Ch.  (S.  C.)  455;  16  Am.  Dec.  667;  reaffirmed  in  Brock 
v.  O'Dell,  (S.  C.)  21  S.  E.  Rep.  976.  The  concurring  opinion  of  PAIGE,  Senator, 
in  Champlin  v.  Laytin,  18  Wend.  (N.  Y.)  422;  31  Am.  Deo.  382,  contains  an 
instructive  review  of  the  authorities  upon  this  point,  and  for  that  reason  is 
here  quoted  at  considerable  length :  "  I  am  prepared  to  assent  to  the  propo- 
sition of  the  vice-chancellor,  that  a  contract  entered  into  under  an  actual 
mistake  of  the  law  on  the  part  of  both  contracting  parties,  by  which  the 
object  and  end  of  their  contract,  according  to  its  intent  and  meaning,  cannot 
be  accomplished,  is  as  liable  to  be  set  aside  as  a  contract  founded  in  mistake 
of  matters  of  fact.  The  proper  distinction,  in  my  judgment,  is  taken  in  the 
rase  of  Lawrence  v.  Beaubien,  2  Bailey  Eq.  (S.  C.)  623;  23  Am.  Dec.  155;  and 
Lowndes  v.  Chisholm,  2  McCord  Eq.  (S.  C.)  455;  16  Am.  Dec.  667,  and  Hop- 
kins V.  Mazyek,  1  Hill  Eq.  (S.  C.)  250,  between  a  mistake  of  the  law  and  a 
mere  ignorance  of  the  law.  The  question,  it  seems  to  me,  was  in  these  cases 
correctly  decided.  Several  of  the  cases  from  the  English  reports  cited  on  the 
argument  were  cases  where  relief  was  granted  against  mere  mistake  of  law. 
Such  were  the  cases  of  Willan  v.  Willan,  16  Ves.  72 ;  Bingham  v.  Bingham,  1 
Ves.  126;  Pusey  v.  Desbourne,  3  P.  Wms.  320;  Landsdowne  v.  Landsdowne, 
Mos.  364.  The  cases  of  Onions  v.  Tyrer,  1  P.  Wms.  345,  and  Perrot  v.  Perrot, 
14  East,  439,  also  recognize  the  principle  that  relief  may  be  afforded  in  cases 
of  mere  mistakes  of  law.  The  case  of  Naylor  v.  Wench,  1  Sim.  A  Stu.  561, 
is  to  the  same  effect.  So  is  the  case  of  of  Fitzgerald  v.  Peck,  4  Litt.  (Ky.) 
127.  I  cannot  see  any  good  sense  in  the  distinction  of  granting  relief  against 
mistakes  of  fact  and  refusing  it  in  cases  of  acknowledged  mistakes  of  law. 
Both,  in  my  judgment,  ought  to  be  placed  on  the  same  footing.  If  the  prin- 
ciples of  justice  require  relief  in  the  one  case,  they  equally  do  in  the  other. 
The  vice-chancellor,  Sir  JOHN  LEACH,  in  Naylor  v.  Wench.  1  Sim.  A  Stu.  555, 
says:  '14  a  party  acting  in  ignorance  of  a  plain  and  settled  principle  of  law 
is  induced  to  give  up  a  portion  of  his  indisputable  property  to  another  under 


872  MARKETABLE   TITLE    TO    EEAL   ESTATE. 

cases  no  way  of  determining  the  truth  or  falsehood  of  the  allega- 
tion. But  if  it  appear  that  the  law  applicable  to  the  case  was 
adverted  to  by  the  parties  and  an  erroneous  conclusion  reached, 

the  name  of  a  compromise,  a  court  of  equity  will  relieve  him  from  the  effect  of 
his  mistake.'  Although  the  case  of  Hunt  v.  Rousmaniere,  1  Pet.  (U.  S.)  13, 
ultimately  turned  on  another  question,  yet  the  opinion  of  Chief  Judge  MAR- 
SHALL in  that  case,  as  reported  in  8  Wheat.  (U.  S.)  205,  clearly  shows  which 
way  was  the  inclination  of  his  mind.  He  says,  speaking  of  the  case  of  Lands- 
downe  v.  Landsdowne,  Mos.  364,  '  that,  as  a  case  in  which  relief  has  been 
granted  on  a  mistake  of  law,  cannot  be  entirely  disregarded.'  And  he  further 
says :  '  Although  we  do  not  find  the  naked  principle  that  relief  may  be  granted 
on  account  of  ignorance  of  law  asserted  in  the  books,  we  find  no  case  in  which 
it  has  been  decided  that  a  plain  acknowledged  mistake  of  law  is  beyond  the 
reach  of  equity.'  And  again,  page  216,  he  says:  'We  are  unwilling,  where  the 
effect  of  the  instrument  is  acknowledged  to  have  been  entirely  misunderstood 
by  both  parties,  to  say  a  court  of  equity  is  incapable  of  affording  relief.'  And 
WASHINGTON,  J.,  in  the  same  case  (1  Pet.  15),  in  the  conclusion  of  his  opinion, 
says :  '  It  is  not  the  intention  of  the  court  to  lay  down  that  there  may  not  he 
cases  in  which  a  court  of  equity  will  relieve  against  a  plain  mistake  arising 
from  ignorance  of  law.'  JOHNSON,  J..  in  Lawrence  v.  Beaubien,  2  Bailey  Eq. 
(S.  C.)  623;  23  Am.  Dec.  155,  says:  'All  the  difficulty  and  confusion  which 
have  grown  out  of  the  application  of  the  maxim,  ignorantia  juris  neminem 
excusat,  appears  to  me  to  have  originated  in  confounding  the  terms  ignorance 
and  mistake.  The  former  is  passive  and  does  not  presume  to  reason,  but  the 
latter  presumes  to  know  when  it  does  not,  and  supplies  palpable  evidence  of  its 
existence.'  He  further  says,  in  Hopkins  v.  Mayzek,  1  Hill  Eq.  ( S.  C. )  250,  that 
a  mere  ignorance  of  the  law  is  not  susceptible  of  proof,  and,  therefore,  cannot 
be  relieved;  but  that  a  mistake  of  law  may  be  proven,  and  when  proved  relief 
may  be  afforded.  If  relief  was  to  be  granted  upon  every  allegation  of  a  mere 
ignorance  of  law,  great  embarrassment  would  arise  in  discriminating  between 
the  cases  of  actual  ignorance  and  those  of  feigned  ignorance.  So,  where  the 
ignorance  or  mistake  of  the  law  is  only  in  one  of  the  contracting  parties,  and 
the  other  party  has  not  taken  any  advantage  of  the  circumstances  in  making 
the  contract,  it  would  not  be  proper  to  grant  relief  against  such  ignorance  or 
mistake.  But  where  a  contract  is  entered  into  under  an  actual  and  reciprocal 
mistake  of  law  in  both  the  contracting  parties,  by  which  the  manifest  intention 
of  the  parties  cannot  be  accomplished,  and  which  ex  cequo  et  bono  ought  not  to 
be  binding,  and  where  such  mistake  is  either  acknowledged  or  undoubted  evi- 
dence of  it  is  produced,  I  cannot  see  any  good  reason  why  relief  should  not  be 
granted  in  equity  to  the  same  extent  as  is  done  in  cases  of  mistakes  in  matter 
of  fact.  The  principles  of  natural  justice  require  that  the  like  relief  should  be 
granted  in  both  cases.  I  would  qualify  the  rule,  however,  as  was  done  by 
JOHNSON,  J..  in  Lawrence  v.  Beaubien,  and  deny  relief  if  it  appeared  the 
contract  was  tae  compromise  of  doubtful  right,  or  was  entered  into  as  a  specu- 
lating bargain.  By  adopting  the  rule  with  these  qualifications,  in  my  judg- 
ment no  mischievous  consequences  would  follow,  but,  on  the  contrary,  the 
interests  of  justice  would  be  advanced." 


IN    CASES    OF    FRAUD    AND    MISTAKE.  873 

there  is  little  or  no  ground  to  impute  bad  faith  to  either  of  them  in 
afterwards  averring  that  he  was  mistaken  as  to  the  law  when  he 
entered  into  the  contract.6*  Those  observations  .vould  apply,  of 
course,  to  all  cases  where  the  parties  had  been  erroneously  or  falselv 
advised  as  to  the  law  by  third  persons.  If  a  man,  upon  erroneous 
advice  as  to  the  law  applicable  to  known  facts,  or  upon  the  erro- 
neous conclusion  of  himself  and  another  as  to  what  that  law  is, 
part  with  property  under  the  impression  or  belief  that  the  title 
thereto  is  not  in  himself,  equity  will  relieve  him  from  the  obliga- 
tion or  loss  incurred  by  that  act.  This  being  so,  no  reason  is  per- 
ceived why  one  who  purchases  property  upon  a  mistaken  represen- 
tation or  conclusion  as  to  what  is  the  law  applicable  to  some  fact 
or  facts  upon  which  the  validity  of  the  title  depends,  should  not  be 
afforded  a  like  relief.  If  a  clear,  bona  fide,  mistake  of  the  law  be 
established  by  aviderice  other  than  the  uncorroborated  testimony 
of  the  purchaser  himself,  there  would  seem  to  be  no  reasons  of 
public  policy,  convenience  or  expedience  upon  which  relief  should 
be  denied  to  him,  unless  it  should  be  intended  to  punish  him  for 
his  mistake  of  the  law. 

The  maxim  that  ignorance  of  the  law  excuses  no  one  applies  only 
to  the  general  public  laws.  It  has  no  application  to  private  or 
special  acts  of  the  legislature,  nor  to  foreign  laws,  nor  to  the  laws 
of  the  other  States  of  the  Union.67 

§  346.  Erroneous  construction  of  devise  of  grant.  If  the  ig- 
norance of  the  law  applicable  to  some  fact  upon  which  the  title 
depends,  consist  in  the  erroneous  construction  of  a  devise  or  grant 

MAs  an  illustration,  let  it  be  supposed  that  the  deed  of  a  married  woman, 
not  executed  as  the  law  requires,  is  void,  and  I,  having  the  deed  before  my 
eyes,  accept  a  title  derived  through  it  without  having  the  invalidity  of  the 
title  occur  to  my  mind.  Here  there  is  a  plain  case  of  ignorance  of  the  law. 
But  it  is  obviously  not  the  same  case  as  wnere  the  invalidity  of  the  title 
if  suggested  to  me,  and  I  declare  my  belief,  or  should  be  advised,  that  the 
law  does  not  invalidate  the  deed,  and  that  the  title  is  sufficient.  In  the  first 
case  I  am  ignorant  of  any  law  affecting  the  title;  in  the  second  case  I  know 
the  letter  of  the  law,  but  am  mistaken  in  its  application  to  my  case.  Whether 
the  legal  consequences  are  to  be  the  same  in  either  case  is  another  question. 
See  Prof.  Bigelow's  note,  Story's  Eq.  Jur.  (13th  ed.)  113. 

•T 1  Story  Eq.  Jur.  140.  King  v.  Doolittle.  1  Head  (Tenn.),  77.  Moreland 
v.  Atchison,  19  Tex.  303,  311.  Havens  v.  Foster,  9  Pick.  (Mass.)  112,  130; 
19  Am.  Dec.  353.  Norton  v.  Marten.  3  Shep.  (Me.)  45. 


874  MARKETABLE    TITLE    TO    EEAL    ESTATE. 

through  which  title  is  claimed,  it  seems  according  to  several  Eng- 
lish decisions,  that  the  purchaser  will  be  relieved.58  It  has  been 
held  that  the  maxim  "  Ignorantia  juris  liaud  excusat "  has  no  ap- 
plication when  the  word  "  jus  "  denotes  private  rights,69  that  is, 
that  a  mistake  as  to  the  general  law  cannot  be  remedied  in  equity, 
but  that  a  mistake  as  to  individual  rights  may  be  a  ground  of  re- 
lief.60 It  has  also  been  said  that  the  rule  "  ignorance  of  the  law 
is  no  excuse,"  applies  only  in  criminal  cases,61  but  that  dictum  is 
not  regarded  as  authority. 

§  347.  Where  the  true  construction  of  the  law  is  doubtful. 
"  Ignorance  of  the  law,"  as  used  in  the  foregoing  connection,  means 
ignorance  of  the  law  as  settled  by  the  decisions  of  the  courts, 
though  such  decisions  be  themselves  erroneous,  and  be  afterwards 
reversed.  A  subsequent  decision  of  a  higher  court  in  a  different 
case,  giving  a  different  exposition  of  a  point  of  law  from  the  one 
declared  and  known  when  a  settlement  between  parties  takes  place, 
cannot  have  a  retrospective  effect,  and  overturn  such  settlement.'2 

58  Beauchamp  v.  Winn.  L.  R.,  6  H.  L.  234,  Lord  CHELMSFORD  saying  that 
ignorance  of  the  law  arising  upon  the  doubtful  construction  of  a  grant  is 
very  different  from  the  ignorance  of  a  well-known  rule  of  law,  and  that  there 
are  many  cases  to  be  found  in  which  equity,  upon  a  mere  mistake  of  the  law, 
without  the  admixture  of  other  circumstances,  has  given  relief  to  a  party  who 
has  dealt  with  his  property  under  the  influence  of  such  mistake.  But  see 
the  apparently  conflicting  language  of  the  same  judge  in  Midland  Great  West., 
etc.,  R.  Co.  v.  Johnson,  6  H.  L.  C.  810,  811,  and  Story's  Eq.  Jur.  (13th  ed.) 
§  127. 

"Per  Lord  WESTBURY  in  Cooper  v.  Phibbs,  2  H.  L.  149;  17  Ir.  Ch.  73.  This 
interpretation  of  the  maxim  was  criticised  in  Hunt  v.  Rousmaniere,  1  Pet. 
(U.  S.)  15,  and  Wintermute  v.  Snyder,  3  N.  J.  Eq.  499.  It  is  also  obscure, 
when  we  remember  that  private  rights  are  governed  by  the  general  law. 

"Bispham's  Eq.   (3d  ed.)   §  187. 

"Per  Lord  KING  in  Landsdowne  v.  Landsdowne,  Mos.  364;  criticised,  1 
Story  Eq.  Jur.  (13th  ed.)  §  116. 

82  Language  of  Chancellor  KENT  in  Lyon  v.  Richmond,  2  Johns.  Ch.  (N.  Y.) 
59.  Hardigree  v.  Mitchum,  51  Ala.  151.  In  this  case  the  vendor  had  agreed 
to  pay  off  a  judgment  lien  on  the  premises  at  a  time  when  the  lien  was  be- 
lieved, by  the  parties,  to  be  valid.  Afterwards  the  law  creating  the  lien  was 
decided  to  be  unconstitutional,  and  the  vendor  refused  to  indemnify  the  vendee 
who  had  bought  the  premises  at  a  sale  under  the  judgment  to  protect  himself. 
The  court  said :  "  No  diligence  on  the  part  of  the  purchaser  could  have  im- 
parted to  him  any  knowledge  of  the  legal  invalidity  of  the  supposed  incum- 
brance.  No  notice  to  him  of  that  invalidity,  or  that  it  was  so  regarded  by  the 
purchaser,  was  given.  On  the  contrary,  the  vendor  shared  in  his  ignorance  or 
mistake  of  the  law,  and  had  promised  performance  of  tn"e  duty  primary  upon 
him  in  legal  contemplation  —  the  removal  of  the  incumbrance.  It  would  be  a 
reproach  to  the  law  if  the  vendor  could  resist  the  claim  of  the  purchaser." 


IN    CASES    OF    FRAUD    AND    MISTAKE.  875 

§  348.  Misrepresentation  of  law  by  vendor.  It  is  a  general 
rule  that  if  a  party  is  induced  to  execute  a  contract  by  representa- 
tions which  are  untrue,  but  innocently  made,  he  will  bo  entitled  to 
a  rescission.*3  Such  a  state  of  facts  frequently  appears  in  suits  for 
rescission  by  grantees  alleging  false  and  fraudulent  representations 
in  respect  to  the  title.  If  the  vendor  knew  the  representation  was 
false,  the  purchaser  would  be  entitled  to  rescind  on  the  ground  of 
fraud.  If  the  representation  was  innocently  made,  then  the  pur- 
chaser would  be  relieved  on  the  ground  of  mistake.'4  The  ques- 
tion whether  the  mistake  in  such  cases  was  one  of  law  or  of  fact 
seems  not  to  have  been  considered  important,  it  being  apparently 
conceded  that  the  falsity  of  the  representation  alone  entitled  the 
purchaser  to  relief.  And,  generally,  it  may  be  said  that  if,  in  a 
case  of  mistake  or  ignorance  of  law  affecting  the  title  on  the  part 
of  the  purchaser,  there  are  circumstances  indicating  fraud,  imposi- 
tion, deceit  or  unconscionable  advantage  on  the  part  of  the  vendor, 
a  court  of  equity  will  gladly  lay  hold  of  them  as  an  escape  from 
the  arbitrary  maxim,  ignorantia  leyis  ncminem  excusat.65 

The  mistake,  to  be  a  ground  for  relief,  must,  of  course,  be  the 
mistake  of  both  parties.  The  importance  of  this  rule  is  chiefly  felt 
in  those  cases  in  which  the  p'urchaser  seeks  to  have  the  contract 
reformed.  Its  importance,  where  the  rescission  of  an  executed 
contract  is  sought,  is  lessened  by  the  consideration  that  if  the 
vendor,  knowing  of  matters  of  law  or  fact  rendering  the  title  worth- 
less, allowed  the  vendee  to  proceed  without  communicating  such 
knowledge,  he  would,  as  a  general  rule,  be  deemed  guilty  of  fraud, 
ajid  upon  that  ground  alone  the  vendee  would  be  relieved. 


0  See  cases  cited,  ante,  §  105.  Bigelow  on  Fraud,  488.  Lanier  v.  Hill,  25 
Ala.  554,  where  the  vendor  and  administrator  c.  t.  a.  falsely  but  innocently 
represented  that  he  had  authority  under  the  will  to  sell.  In  Drew  v.  Clarke, 
Cooke  (Tenn.),  374;  5  Am.  Dec.  698,  it  was  laid  down  that  if  a  man  is  clearly 
under  a  mistake  in  point  of  law,  which  mistake  is  produced  by  the  representa- 
tion of  the  other  party,  he  can  be  relieved  as  well  as  if  the  mistake  were  as 
to  a  matter  of  fact.  See,  also,  Moreland  v.  Atchison,  19  Tex.  303.  2  Warvelle 
Vend.  812. 

M  Fane  v.  Fane,  L.  R.  20  Eq.  Cas.  698. 

"  1  Beach  Mod.  Eq.  Jur.  §  36;  1  Story  Eq.  Jur.  (13th  ed.)  §  133;  Bispham 
Eq.  Princ.  (3d  ed.)  §  185. 


INDEX. 


[REFERENCES  ARE  TO   PACKS.] 


Abatement  of  purchase  money.  (See 
PURCHASE  MONEY,  COMPENSATION 
FOB  DEFECTS,  SPECIFIC  PERFORM- 
ANCE. ) 

Absence. 

title     as     dependent    on     long-con- 
tinued, of  party  in  interest,  745 

Abstract  of  title. 

may    be    supplemented    by    written 

evidences  of  title,  25 
what  it  should  show,  159 
root  of  title,    161 
duty  to  furnish,  162 
property  in,   165 
time  in  which,  should  be  furnished, 

164 
time  in  which  to  examine  title  and 

verify,  165 

summary  of  principal  sources  of  ob- 
jections to  title,  167 
objections    apparent    on    face    of 

title   papers,    171 
objections     apparent     from     the 

public  records,  176 
objections    arising    from    matters 
in  pat's,  180 

Acceptance  of  grant. 

purchaser  is  not  estopped  by,  552 

Acceptance  of  title.  (See  WAIVER  OF 
OBJECTIONS.  ) 

Accident.     (See  MISTAKE.) 

Acknowledgment  of  deeds. 

acknowledgment,  necessity  for,  55 

defective     certificate     makes     title 

doubtful,  56,  761 
examples,  762 

statutory   form   should   be   literally 
followed,  56 

venue    of   certificate,    necessity    for, 
57 

name    of    certifying    officer    should 
appear,  57 

purchaser  cannot  take  acknowledg- 
ment, 58 


Acknowledgment  of  deeds  —  Contin- 
ued. 

interested  party  cannot  take  ac- 
knowledgment, 58 

official  designation  of  certifying  ol- 
ficer,  58,  59 

certificate  by  de  facto  officer  is 
valid,  59 

name  of  grantor  should  appear  in 
certificate,  60 

acknowledgment  by  officers  and 
fiduciaries,  61 

acknowledgment  by  attorney  in 
fact,  61 

annexation  of  deed  and  reference 
thereto.  61 

jurisdiction  of  certifying  officer,  62 

personal  acquaintance  with  grantor, 
63 

fact  of  acknowledgment  must  ap- 
pear, 63 

privy  examination  of  wife  nu-t 
appear,  64 

must  recite  explanation  of  content.* 
of  deed,  65 

must  recite  declaration  that  act 
was  voluntary,  66 

wish  not  to  retract,  67 

certificate  should  contain  recog- 
nition of  seal,  68 

certificate  should  be  dated,  68 

certificate  must  be  signed,  68 

abbreviation  "  J.  P.,"  "  N.  P.,"  etc., 
after  signature,  69 

certificate  should  be  under  officer '» 
seal,  69 

surplusage  will  not  avoid  certifi- 
cate, 70 

clerical  mistakes,  when  immaterial, 
70 

certificate  cannot  be  amended  after 
delivery,  72 

acknowledgment  cannot  be  proved 
by  parol,  72 

certificate  cannot  be  amended  or 
cured  by  evidence  aliunde,  72 

title  as  dependent  on  sufficiency  of, 
720,  n. 

Acreage. 

warranty  does  not  extend  to,  33*5 


878 


INDEX. 


[REFERENCES  ABE  TO  PAGES.] 


Action. 

against  vendor   for   breach   of   con- 
tract, 11,  18 
for  deceit,  3,  233 
on  covenants  for  title,  254 
to  recover  back  purchase  nionev, 

582,  588 
to    compel    specific    performance, 

4/9 

to  rescind  contract,  689 
circuity    of,    avoided    by    estoppel, 

529,  540 
and  by  recoupment,  454 

Acts  of  ownership.     (See  WAIVER  OF 

OBJECTIONS.) 

not  necessarily  a  waiver  of  object- 
ion to  title,  190 

Acts  of  sovereignty. 

vendor  cannot  be  required  to  cov- 
enant against,  153 

constitute  no  breach  of  warranty, 
354 

Actual  eviction.    (See  EVICTION.) 

Actual  seisin. 

though  wrongful,  supports  covenant 

of  seisin  in  certain  States,  255 
dissent  from  this  doctrine,  256 

Administrators.    (See  EXECUTOBS.) 

Adverse  claimant.  (See  EVICTION, 
WARRANTY.  ) 

entry  of,  constitutes  breach  of  war- 
ranty, when,  358 

surrender  of  possession  to,  363 

hostile  assertion  of  title  by,  neces- 
sary to  constructive  eviction, 
367,  373 

existence  of,  makes  title  unmarket- 
able, 731 

Adverse  possession. 

constitutes    breach    of    covenant    of 

warranty,  360 
title    by,     marketable,     737.      (See 

DOUBTFUL  TITLE.) 
title  not  marketable  where  premises 

held  adversely,  731 

Adverse  suit.    (See  COVENANT  OF  WABI 

BANTY.  ) 
covenantor  must  be  notified  of,  423 

Affirmance. 

of  contract,  remedies  in,  3 

by  action  at  law,  11 

by  proceedings  in  equity,  479 


After-acquired  title.    (See  ESTOPPEL.) 
enures  to  benefit  of  grantee,  518 
grantee    may   be    required   to   take, 
534 

Agent. 

may  insert  in  agreement  provisions 

as  to  the  title,  22 
usual    covenants    may    be    required 

from,   154 

fraud  of,  binds  principal,  230 
but  principal  not  liable  to  action 

of  damages,  236 

agent  is  personally  liable  in  dam- 
ages, 237 

and    criminally,    in    some    juris- 
dictions, 237 

Agreements  respecting  the  title. 
implied  agreements,  20 

good  title   implied  in  every  sale, 

20 
effect    of    contract    silent    as    to 

quantity  of  interest,   20 
contract   to    sell    means   that   fee 

simple  is  sold,  21 
effect   of    unrestricted    agreement 

to  sell,  21 
implication  of  good  title  rebutted 

by  notice  of  defect,  21 
no    implication    of    good    title    in 

ministerial  sales,  22 
except    in   sale   by   assignee    in 

bankruptcy,  134 
sale  of  lease  implies  good  title  in 

landlord,  22 

agreement   to   quitclaim   will   not 
embrace      after-acquired     in- 
terest, 21 

no  implication  of  title  in  assign- 
ment of  contract  to  sell,  22 
nor   in  assignment  of  land  office 

certificate,  22 
express  agreements,  23 

written   contract   usually   entered 

into,  23 
this   often   specifies   kind   of  title 

to  be  conveyed,  23 
contract    for    title    deducible    of 

record,  24 
stipulation     that     abstract    shall 

show  title.  24 
agreement  to  furnish  satisfactory 

abstract,  24 
agreement     that     title     shall     be 

"  satisfactory,"  724 
terms  and  condition  of  sale,  25 
verbal  declarations  of  auctioneer, 

25 

agreement    to    make    "  good    and 
sufficient  deed,"  32 


INDEX. 

[REFERENCES   AEE  TO  PAGES. J 


870 


Agreement  respecting  the  title  —  Cou- 
tinued. 

means   that   deed    must   coffvey 

indefeasible  estate,  34 
agreement     to     convey     by     quit 

claim,  36 
but    such    agreement    must    be 

clear  and  unambiguous,  37 
obliges   purchaser   to   take   the 
.    •  title  such  as  it  is,  38 

agreement     to     take     defective 
title   no   waiver   of   right   to 
covenants,  37 
agreement    to    sell    "  right,   title 

and  interest,"  38 
obliges   purchaser   to   take   tl-.c 

title  such  as  it  is,  38 
but    vendor    must    have    »ome 

kind  of  title  or  right,  38 
agreement    to    purchase   "  subject 

to"  liens,  38 

adds  amount  of  lien  to  the  pur- 
chase price,  38 

but  does  not  make  purchaser 
personally  liable  to  lienor, 
38 

agreement  that  lien  shall  be  do- 
ducted  from  purchase  money. 
39 

English    rules    respecting   the    con- 
tract, 26 

provisions    dispensing   with    mar- 
ketable title,  must  be  clear, 
28 
purchaser  bound  by  agreement  to 

take  doubtful  title,  28 
common    conditions    of    sale,    25, 

27 
can  purchaser  show  aliunde,  that 

title  is  bad?  29 
how  conditions  construed,  28 
doubtful   conditions   construed   in 

favor  of  purchaser,  30 
defects   should    be   stated   in    the 

particulars,  30 

bidding  without  objection  to  con- 
ditions, 30 
stipulation    that    sale    shall     be 

void  if  title  defective,  31 
declarations  of   auctioneer,   when 

admissible,  31 
discrepancy    between    particulars 

and  deed  referred  to,  32 
executory     agreements     merged     n» 
deed      and      covenants.        (See 
MERGER.  ) 
mutual  agreements  to  rescind,   377 

(See  RESCISSION.) 
not    within    Statute    of    Frauds, 
581 


Agreement  respecting  the  title  — Con- 
tinued, 
specific  performance  of  agreements. 

456 

special  agreements  as  to  the  title. 
724 

Ahen. 

conveyance  on  behalf  of,  without 
his  request,  title  held  market- 
able, 772,  n 

Amendment, 
of  certificate  of  acknowledgment,  72 

Annexation. 

of  certificate  of  acknowledgment  lo 
deed,  61 

Application  of  purchase  money. 

duty  to  see  to,  makes  title  unmar- 
ketable, 783 

duty  to  see  to,  to  be  noted  in  ex- 
amining title,  173 

Apportionment. 

of  damages  on  breach  of  covenant 
as  to  part,  409 

Assets. 

heir  without,  not  bound  by  an- 
cestor's warranty,  345 

Assignee. 

in  bankruptcy,  covenants  by,  154 
caveat    emptor    applies  -to    sale* 
by,  134 

exception  in  New  York,  131 
of    covenants    for    title.      (See    tlie 

several  covenants.) 
not   bound   by   equities   of  which 

he  had  no  notice,  389 
may   sue   in    his   own   name,   when. 

378 

of     purchase-money     note — caution 
with  respect  to  rights  of,  511 

Assumpsit. 

when  may  be  brought  by  purchaser 

on  failure  of  title,  11,  12,  588 
attacking    vendor's    title    in    action 

of,  464 
to  try  title,  464 

objection  that  question  of  title 
cannot  be  determined  in,  con- 
troverted, 464 

proper  action  to  recover  back  pur- 
chase money,  588 
but   cannot    be    maintained    after 
contract  has  been  executed,  676 

Assurance.    (See  FUBTHEB  ASSURANCE.) 


880 


INDEX. 


[REFERENCES  ABE  TO  PAGES.] 


Attachment. 

should  be  noted  in  examining  title, 

178 

must    be    docketed    to    bind    pur- 
chaser,  178 
is   breach    of   covenant   against    in- 

cumbrances,  when,  291 
is  an  objection  to  title,  when,  781 

Attestation  of  deed. 

necessity  for,  in  some  States,  55 
subscribing  witness  should  be  com- 
petent, 55 

Attorney  in  fact. 

how  deed  should  be  executed  by,  48 

how  deed  should  be  acknowledged 
by,  61 

usual  covenants  may  be  required 
from,  154 

title  as  dependent  on  entry  of  satis- 
faction by,  788 

Auctioneer. 

verbal  declarations  as  to  title  ad- 
missible, when,  25,  31 

Bankruptcy. 

caveat   emptor   applies    to    sale    by 

assignee,  when,  134 
covenants    for    title    by    bankrupt, 

153 

estoppel  of  bankrupt,  543 
title  as  dependent  on  act  of,  712,  n, 

730 
effect  of  discharge,  348 

Bargain,    Loss    of.      (See    DAMAGES, 
MEASURE  OF,) 

Benefit. 

of  covenants,  who  entitled  to  (See 
WARRANTY.  ) 

Bond  for  title.    (See  TITLE  BOND.) 

Breach. 

of  covenant  for  seisin,  259 
against  incumbrances,  289 
for  further  assurance,  439 
for  quiet  enjoyment  aad  of  war- 
ranty, 350 

how  assigned  in  pleading,  433 
of  contract,  as  ground  for  damages, 

11 
for  rescission,  577 

Building  restrictions. 

constitute      breach      of      covenant 

against  incumbrances,  301 
render  title  unmarketable,  776 


Burden  of  proof. 

in  action  for  breach  of  contract,  16 

covenant  of  seisin,  275 

covenant  against  incumbrances, 
326 

covenant  of  warranty,  435 

by  vendor  for  specific  perform- 
ance, 693 

by  purchaser  to  recover  back 
purchase  money,  594,  704 

to  rescind  contract,  704 

Caveat  emptor. 

meaning    and    application    of    this 

maxim,  6,  75 
does  not  apply  between  lessor  and 

lessee,  408 
application  to  judicial  sales,  76 

what  is  a  judicial  sale,  76 

when  objections  to  title  must  be 
made,  77 

effect  of  confirmation  of  the  sale, 
77 

effect  of  bid  with  notice  of  de- 
fect, 79 

when  maxim  does  not  apply  to 
judicial  sale,  81 

distinction  between  sale  of 
"  land  "  and  sale  of  "  estate,*' 
86 

comments  upon  the  maxim,  85 

does  not  apply  in  cases  of  fraud, 
86 

several  kinds  of  fraud  affecting 
judicial  sale,  87 

fraud  will  not  excuse  negligent 
purchaser,  87 

errors  and  irregularities  in  the 
proceedings,  88 

no  objection  to  title  thereunder, 
88 

unless  the  error  goes  to  the  ju- 
risdiction, 90 

what  is  "  collateral  attack,"  95 

respects  in  which  jurisdiction 
may  be  wanting,  96,  98 

existence  of  jurisdictional  facts 
presumed,  99 

extraneous  evidence  inadmissi- 
ble, 99 

record  cannot  be  contradicted, 
100 

presumption  of  jurisdiction  does 
not  apply  to  inferior  courts, 
101 

when  does  want  of  jurisdiction 
appear  from  record?  102 

title  as  affected  by  matters  oc- 
curring after  jurisdiction  has 
attached,  104 


INDEX. 


881 


[REFERENCES 

Caveat  emptor  —  Continued. 

fraud  as  ground  for  collateral 
attack,  105 

fraud  in  procuration  of  judg- 
ment, 105 

fraud  in  making  judicial  sale, 
106 

purchase  by  officer  invalid,   107 
application    to    sales    by    executors 
and   administrators,   108 

distinction  between  sales  under 
a  will  and  those  under  court 
orders,  108 

purchase  by  personal  representa- 
tive is  void,  108 

sales    in     pursuance    of    judicial 

license,  109 
regarded  as  judicial  sales,   110 

effect  of  fraud  by  representative, 
111 

when  purchaser  excused  from 
performance,  113 

want  of  jurisdiction,  errors  and 

irregularities,   114 
application    to    sales    by    sheriffs, 
tax  officers,  etc.,  118 

maxim  strictly  applies  to  sher- 
iffs' sales,  118 

purchaser  cannot  recover  from 
execution  plaintiff,  122 

when   purchaser   relieved,    123 

effect  of  fraud  by  sheriff  and 
execution  plaintiff,  125 

title  under  void  judgment,  126 

title  under  void  execution  sale, 
129 

maxim  strictly  applies  to  tax 
sales,  132 

and  to  sales  by  trustees,  asssig- 

nees,  etc.,   132 

subrogation    of    purchaser    at    ju- 
dicial sale. 

where  sale  is  void,  134 

where  sale  is  valid,   140 

fraud  of  purchaser  destroys  right 
of,  141 

Certificate  of  acknowledgment,  requi- 
sites.    (See  ACKNOWLEDGMENT.) 

Cestui  que  trust. 

covenants  for  title  may  be  required 
from,  154 

Champerty. 

as  connected  with  doctrine  of 
actual  seisin,  256 

does  not  invalidate  covenants  for 
title,  259 

does  not  prevent  enuring  of  after- 
acquired  title,  when,  527 

56 


ABE  TO  PAGES.] 

Chose  in  action. 


right    to    damages    for    breach    of 

covenant  is,  261 

not  assignable  at  common  law,  263 
but  assignment  enforced  in  equity, 
-268 

Circuity  of  action. 

avoided  by  doctrine  of  estoppel  and 

after-acquired   estate,   529,   540 

by  detention  of   purchase  money 

on    breach    of    covenants,    454, 

643 

Collateral  attack.     (See  CAVEAT  EMP- 

TOB.) 
on  judgment,  as  affecting  question 

of  title,  95 
definition  of  this  term,  96 

Common  conditions. 

of  sale,  what  are,  25,  27 

Compensation    for    defects    of    title. 

(See    PURCHASE    MONEY,    DAM- 
AGES. ) 
purchaser    may    accept    title    with. 

(See  SPECIFIC  PERFORMANCE. ) 

vendor    may    require    purchaser    to 

take  title  with,  when,  822 

but  only  where  part  lost  is  not 
material,  822 

and  only  where  lien  is  inconsid- 
erable, 822 

equity  will  direct  an  inquiry  on 
these  points,  823 

purchase  with  notice  of  defect, 
824 

contract  should  provide  for 
abatement,  824 

compensation  decreed  according 
to  relative  value,  825 

remedy  of  vendor  is  exclusively 
in  equity,  825 

rule  does  not  apply  where  objec- 
tion goes  to  title  to  whole,  l>2o 

contract  cannot  be  rescinded  ir. 
part,  825 

rule  where  title  to  one  of  several 
lots  is  bad,  826 

rule  does  not  apply  where  title 
fails  to  considerable  portion, 
826 

or  to  part  indispensable  to  en- 
joyment of  residue,  828 

or  where  no  means  for  estimat- 
ing compensation  accurately, 
828 

purchaser  cannot  be  compflVd  to 
accept  a  lesser  estat",  829 


882 


Compensation   for   defects  of  title  — 

Continued. 

iior  to  accept  an  undivided  moie- 
ty, 829 

itlief  denied  vendor  if  guilt f  of 
fraud,  829 

and  where  he  has  cvio<c»l  pur- 
chaser, 829 

purchaser  cannot  be  compelled  to 
accept  indemnity,  830 

Concealment.    (See  FRAUD.) 

of     defects     of     title     fraudulent, 
when,  233 

Concurrent  remedies. 

various,    on    failure   of    title,    sum- 
marized, 3 

Condemnation  of  lands. 

in    eminent    domain,   no    breach    of 
warranty,  355 

Conditions, 
of  sale,  25,  27 

performance   of,    as    affecting   title, 
736 

Confirmation    of    sale.      (See    CAVEAT 

EMPTOB.  ) 
purchaser    cannot    object    to    title 

after,  77 

exceptions   to  this   rule,   81 
comments  upon  the  rule,  83 

Conflict  of  laws. 

as  to  effect  of  covenants  for  title, 

272 

as  to  validity  of  deed,  528 
as  to  measure  of  damages,  397 

Consideration. 

of  deed  may  be  shown,  402 
expressed,  not  conclusive,  403 
partial    failure    of,    as    defense    to 

action  for  purchase  money,  461 
want   of,  no   defense   to    action    on 

warranty,  336 

of    sealed    instrument    may    be    in- 
quired into,  605 

Consideration  money.     (See  DAMAGES, 

MEASURE  OF.) 
usually    measure     of    damages    on 

breach  of  contract,  212 
and  on  breach  of  covenants,  395 
that    expressed    may    be    contra- 
dicted, 403 
if  none  expressed,  may  be  shown, 

403 

(See  INTEREST  AND  PURCHASE 
MONEY.  ) 


INDEX. 

[REFERENCES  ABE  TO  PAGES.] 
Construction. 


title  as  dependent  on,  of  deed  or 
will,  712,  766 

Constructive  eviction.  (See  WAR- 
RANTY, COVENANT  OF.) 

inability  to  get  possession  of  prem- 
ises, 360 

compulsory  surrender  of  premises, 
363 

purchase  of  outstanding  title,  353, 
369 

Constructive  notice. 

of  defective  title  from  possession  of 

stranger,  182 

from  the  public  records,  199,241, 
600,  668 

Contingent  remainder. 

title  dependent  on,  not  marketable, 

736 
will  not  pass  by  quit  claim,  when, 

547 

Continuing  breach,  Doctrine  of. 
of  covenant  for  seisin,  267 

Contract.  (See  AGREEMENT.) 
executory  and  executed,  3 
executed,  cannot  be  rescinded. 

when,  6,  8,  630,  853 
affirmance    of,    3      (See    ANALYSIS, 

p.  VII.) 

action  for  breach  of,  11 
implied  and  express,  as  to  title,  20, 

23 

usual  provisions  of,  23 
to     make      "  good     and     sufficient 

deed,"  32 
measure  of  damages  for  breach  of. 

210 

specific  performance  of,  479 
merger  of  executory,  in  deed,  451, 

656 
rescission  of,  577.     (See  ANALYSIS, 

p.  VII.) 

Conveyance.    (See  DEED.) 

tendered  by  vendor,  sufficiency  of, 
40 

Coparceners. 

covenants  implied  in  partition  be- 
tween, 344 

Corporation. 

how    deed    of,    should   be   executed, 

48,  49,  n 
how  acknowledged,  61 


INDEX. 

[REFERENCES   ARE  TO   PAGES.] 


883 


Corporation  —  Continued. 

title  as  dependent  on  devise  to 
770,  n 

Costs. 

of  examining  title  may  be  recov- 
ered, 14,  220,  593 

recoverable  as  damages,  when,  220 
417,  421,  59.3 

of  perfecting  the  title,  797 

of  reference  to  master  in  chancery, 
817 

Counsel. 

fees  of,  an  element  of  damages, 
220,  421 

opinion  of,  not  admissible  on  ques- 
tion of  good  title,  710,  749 

title  to  be  satisfactory  to  pur- 
chaser's, 726 

Covenant,  Action  of. 

when  must  be  brought,  11 

Covenantor. 

may  except  incumbrance  or  par- 
ticular claims  from  covenant, 
282 

tortious  acts  of,  are  breach  of  war- 
ranty, 352 

notice  to,  of  suit  of  adverse  claim- 
ant, 423 

Covenants. 

mutual  and  dependent,  when,  200, 
485,  804 

Covenants  for  title, 
necessity  for,  143 
may  be  required  notwithstanding 

consent  to  take  defective  title,  37 
what   are   the   usual    covenants   for 

title,   143 

form  of  the  usual  covenants,  143,  n 
right  to  full  or  general  covenants, 

145,  147 
from  grantors    in   their   own    right, 

147 

from  nominal  party  to  deed,  151 
from  mortgagors,   152 
from  fiduciary  grantors,   153 
from  ministerial  grantors,   157 
specific  performance  of,  514 
operation  by  way  of  estoppel.    (See 

ESTOPPEL.) 

detention    of    purchase    money    on 
breach  of,  442 

(See   PURCHASE    MONEY,    DETEN- 
TION OF.) 

where  no  covenants  for  title,  648 
see  the  several   covenants  for  title 
for 


Covenants  for  title  —  Continued. 
uHtdguability 
what  constitutes  breach 
measure  of  damages 
when  implied 

persons  bound    »nd  benefited 
qualifications    and    restriction!* 

Creditors. 

reformation  of  deed  as  against,  573 

Damages. 

when  action  for,  on  failure  of  title 

improper,  15 

when  recoverable  in  equity,  187 
may  be  recovered  at  law  lor 

breach     of     contract     to     convey 

good  title.  11,  210 
but    not    when    title    N     mirvlv 

doubtful,  16 
fraud    and    deceit    in    respect    to 

the  title,  233 

broach     of    covenants     for    title, 
271,  314.  390 
recoupment,  45* 

Damages,  Measure  of. 

what  are  nominal  damages.  210 

when  too  remote,  211 

where    vendor    acts    in    good    faith, 

212 
none  for  loss  of  bargain,  212 

Flureau  v.  Thornhill,  Hopkins  v. 

Lee,   212 

barter  contracts,  218 
expenses  of  examining  title,  etc., 

220 
interest   as   element    of   damage*, 

221 

rents  and  profits  as  set-off,  221 
no    allowance    for    improvement*, 

223 

where  vendor  acts  in  bad  faith,  224 
where  vendor  expects  lo  obtain  tne 

title,   226 

where  vendor  refuses  to  remove  ob- 
jections, 229 
liquidated  damages,  230 
for   breach    of   covenants    for   title. 
(See  the  several  covenants.) 

Date. 

not  necessary  to  validity  of  deed,  44 
of  certificate  of  acknowledgment,  68 

Death. 

title   as   dependent   on   presumption 

of,  745 
Decedent. 

title  as  dependent  on  insolvency  of, 

772 
intestacy  of,  771 


884 


[DEFERENCES  ABE  TO  PAGES.] 


Deceit.    (See  FBAUD.) 

action  of,  when  it  lies,  234 
is    concurrent    with    action 
breach  of  contract,  13 


for 


Declaration.    (See  PLEADING,  DECEIT.) 
of  auctioneer  as  to  title,  25,  31 
what  should  set  forth, 

in  action  on  covenant  for  seisin, 

279 
covenant  against  incumbrances, 

325 

covenant  of  warranty,  433 
for  breach  of  contract,  14,  1C 
for  deceit,   252 

to  recover  back  purchase  money, 
257 

Deed. 

tendered  bv  vendor,  sufficiency  of, 
40 

vendor  must  prepare  and  tender,  41 

must  be  acknowledged  and  ready 
for  record,  41 

must  contain  covenants  to  which 
purchaser  entitled,  41 

essential  requisites  of  the  convey- 
ance, 42 

informal  or  irregular,  may  be  re- 
jected, 42 

may  be  corrected  and  reacknowl- 
edged,  44 

purchaser  must  accept,  correcting 
errors,  42 

consideration  should  be  recited  in 
some  States,  43 

should  be  written  or  printed  on 
paper  or  parchment,  43 

should  be  dated,  44 

dated  on  Sunday  is  valid,  44 

must  contain  parties  grantor  and 
grantee,  44 

should  set  forth  their  Christian 
names,  44 

but  name  need  not  appear  in  grant- 
ing clause,  45 

void  if  grantee  uncertain,  45 

to  fictitious  person  is  void,  45 

to  partners  should  be  to  them  as 
individuals,  45 

names  of  parties  should  be  cor- 
rectly stated,  46 

owner  of  record  must  join  in  deed, 
46 

purchaser  may  reject  deed  of 
stranger,  46 

from  third  person,  when  sufficient, 
47 

all  parties  in  interest  should  join 
in,  47 


Deed  —  Continued. 

executed  by  attorney,  may  be  re- 
jected, when,  48 

bow  executed  by  attorney  or  cor- 
poration, 48 

grantor  should  have  power  to  con- 
vey, 48 
and  be  legally  competent,  49 

how  partnership  conveys,  49 

should  contain  relinquishment  of 
dower  right,  49 

must  contain  proper  words  of  con- 
veyance, 49 

but  not  necessarily  in  granting 
clause,  50 

must  contain  proper  description  of 

premises,  50 

sufficient   if   land   can   be    identi- 
fied, 51 

examples  in  which,  held  void.  52 
inadequate    description    no   notice 

to  purchaser,  52 

of  "  assets  "  will  not  pass  lands, 
52 

interest  conveyed  should  be  cor- 
rectly described,  53 

of  "  right,  title  or  interest,"  is  a 
mere  release,  53 

of  greater  interest  than  vendor  has, 
not  void,  53 

should  be  signed  and  sealed  by 
grantor,  54 

seal  should  be  recognized  in  body 
of,  55 

attestation  of,  by  subscribing  wit- 
ness, 55.  (See  ACKNOWLEDG- 
MENT. ) 

should  not  contain  unauthorized 
restrictions  or  reservations,  73 

containing  blanks  or  erasures  may 
be  rejected,  73 

objections  to,  must  be  made  when 

tendered,  74 
otherwise  held  to  be  waived,  74 

objections  to  title  apparent  front 
face  of,  171 

subsequent,  is  breach  of  warranty 
in  prior,  432 

when  passes  after-acquired  title, 
518 

when  reformed  in  equity,  555 

where  void,  purchase  money  may 
be  detained,  656,  679 

title   as   dependent  on  construction 

of,  766 
as  dependent  on  defective,  761 

when  rescinded,  853 

tender  of  purchase  money  and  de- 
mand for,  200 


INDEX. 


s*;, 


Defeasance. 
what  is  a,  177 
records  should  be  searched  for,  177 

Defective  conveyance.     (See  REFORMA- 
TION. ) 
purchaser    may    reject,    40.       (See 

DEED.) 
title  as  dependent  on,  761 

Defective  title.    (See  DOUBTFUL  TITLE.) 
classification  of  various  sources  of, 

171 
effect   of   purchase   with    notice   of, 

195 
rescission   of   contract   in   cases   of, 

577,  582,  689 
detention  of  purchase  money  where. 

(See  PURCHASE  MONEY.) 
notice    of,    no   bar    to    recovery   on 

warranty,  335 

concealment  of,  a  fraud,  237 
at    judicial    and    ministerial    sales. 

(See  CAVEAT  EMPTOR.) 

Defenses  of  purchaser. 

to  action   for  damages,   18 

suit  for  specific  performance,  692 
action   to  recover   purchase   money, 

442,  582 

Delay. 

in    suit    for    specific    performance, 

487 
of   vendor   in   performing   contract, 

810 

in  objecting  to  title,  191 
in  objecting  to  vendor's  fraud,  194 

Demand   for   deed.     (See   TENDER   OF 

PERFORMANCE.  ) 
as  condition  precedent  to  action  for 

damages,  200 
when  need  not  be  made,  202 

Deposit. 

may    be    recovered    if    title    is    de- 
fective, 586 
Descent. 

title  as   dependent  on   question  of, 
728,  730 

Description. 

of    premises    in    deed,    50.       (See 

DEED,  SUFFICIENCY  OF.) 
title  as  dependent  on,  702,  n. 

Detention   of   purchase   money.     (See 
PURCHASE  MONEY,  DETENTION  OF.) 
Devisee. 

liability  for  damages  on  warranty 

of  devisor,  345 
of  covenantee  entitled  to  benefit  of 

covenant,  349 

title  as  dependent  on  devise,  766,  n., 
768,  n. 


[REFERENCES   ARE  TO  PAOBS.] 

Disturbance. 

tortious,    no    breach    of    warranty, 


350 
unless  by  covenantor  hiniHelf,  :\')2 

Doubtful  title, 
question  of,  may  be  made  in  a  court 

of  law,   16 
purchaser  never  required  to  accept, 

705 

meaning  of  the  expression,  707 
and  of  the  expression  "  marketable 

title,"  706 
mathematical    certainty    of    perfect 

title  impossible,  707 
doubts    must    not    be    captious    or 

frivolous,  707 
may  depend  on  question  of  law  or 

of  fact,  709 
this  objection  not  usually  made  by 

lessees,  710 
question   is   for   the  court   and   not 

for  the  jury,  710 
opinions   of  counsel    not   admissible 

on  question  of,  710,  749 
cases    in    which    title    will    be    held 

doubtful,  711 
probability    of    litigation    against 

purchaser,   711 
decision    adverse    to    title    which 

court  thinks  wrong,  711 
decision    in   favor  of  title  which 

court  thinks  wrong,  712 
doubtful    construction    of    instru- 
ment, 712 

where  court  would   instruct   jury 
to  find  in  favor  of  fact  invali- 
dating the  title,  712 
where  the  circumstances  raise  a 
presumption  of  a  fact  fatal  to 
the  title,  713 
cases    in    which    title    will    be    held 

not  doubtful.  713 
where  there  is  no  probability  of 
litigation     against     the     pur- 
chaser, 713 

where  there  has  been  a  decision 
against    the    title    which     the 
court  holds  wrong,  713 
where  the  doubt  depends  on   the 

general  law  of  the  land,  713 
or  on  a  rule  of  construction  un- 
affected  by   context  of   instru- 
ment, 714 
or   on   a   conclusive    presumption 

of  fact,  714 
or    on    mere    suspicion    of    mala 

fides,  715 

question   of  doubtful   title   may  be 
made  at  law  as  well  as  in  equity, 
717 


886 


INDEX. 


[REFERENCES  ARE  TO  PAGES.] 


Doubtful  title  —  Continued. 

judgment  on  question  ol  title  does 

not  bind  strangers,  721 
this    fact    a    strong    ground    of    ob- 
jection to  title,  721 
in  some  States  vendor  permitted  to 

bring  in  parties  in  interest,  723 
special    agreements    respecting    the 

title,   724 
effect  of  agreement  for  "  good  title 

of  record,"  724 

effect    of    agreement    for    "  market- 
able"  title,  725 
that  title  shall  be  satisfactory  to 

purchaser,  725 
that  title  shall  be  satisfactory  to 

counsel,  725 
mere  expression  of  dissatisfaction 

insufficient,  727 

necessity  of  parol  evidence  to  re- 
move doubts  renders  title  un- 
marketable, 728 

but  title  not  necessarily  doubtful 
because  dependent  on  facts 
resting  in  parol,  728 
sale  implies  a  contract  that  title 
shall  be  deducible  of  record, 
729 

court  may  inquire  into  facts  on 

which  objection  is  rested,  730 

purchaser   cannot   be    compelled    to 

take  equitable  title,  731 
nor  title  controverted  in  good  faith 

by  adverse  claimant,  731 
mere  claim  without  color  of  title, 

no  valid  objection  to  title,  732 
title  in  litigation  is  unmarketable, 

734 
but    probability    of    litigation    not 

always  a  valid  objection,  734 
defeasibility   of    estate    a   sufficient 

objection,  735 

title  perfected  by  Statute  of  Limi- 
tations is  marketable,  737 
unless  facts  constituting  the  bar 

are  in  dispute,  740 
possession    must    have    been    ad- 
verse,   notorious,    hostile    and 
uninterrupted,  740 
with   means   of  establishing  that 
fact  if  disputed  in  the  future, 
741 

possession  of  purchaser  is  pro- 
longation of  that  of  vendor, 
742 

purchaser  may  reject,  when  con- 
tract provides  for  "  good  title 
of  record,"  741 

adverse  possession  of  mere  tres- 
passer insufficient,  741 


Doubtful  title  —  Continued. 

time  sufficient  to  bar  disabilities 

must  have  elapsed,  742 
burden  on  vendor  to  show  prima 

facie  bar,  743 
and  on   purchaser   to  show  facts 

removing  the  bar,  743 
conclusive   presumption   from   lapse 

of  time,  744 

title    as    affected    by    other    pre- 
sumptions, 746 

title  dependent   on  question   of  no- 
tice is  unmarketable,  747 
burden  is  on  vendor  to  show  title 
prima   facie   free    from    doubt, 
748 

after  which  burden  shifts  to  pur- 
chaser to  show  doubts,  749 
illustrations  of  foregoing  principles, 

749 

general  observations,  750 
error    and    irregularities    in    ju- 
dicial proceedings,  751 
sales    of    the    estates    of    persons 

under  disabilities,  755 
want  of  parties  to  suits,  757 
defective     conveyances     and     ac- 
knowledgments, 761 
imperfect  registration,  761 
construction  of  deeds,  wills,  etc., 

766 
competency   of   parties   to   deeds, 

767 
title   as   dependent   on   intestacy, 

771 
and  on  insolvency  of  intestate, 

772 

incumbrances  which  make  title  un- 
marketable, 774 
admitted  incumbrances,  775 
easements,      rights      of      way, 
building      restrictions,      etc., 
775 

disputed  incumbrances,  780 
where  doubts  must  be  removed 

by  parol  evidence,  780 
Us  pendens,  781 
existence    and    enforcibility    of 

incumbrance,  782 
duty  to   see  to   application  of 

purchase  money,  783 
improbability  that  incumbrance 

will  be  enforced,  784 
apparently    unsatisfied    incum- 
brances, 786 
authority  to  enter  satisfaction, 

788 

encroachments  and  deficiencies, 
789 


INDKX. 

[BEFEBEXCES   ARE  TO   PAf;i:S  ] 


887 


Dower. 

right  of,  no  breach  of  covenant  for 

seizin,  261 

inchoate  right  of,  is  breach  of  cove- 
nant against  incumbrances,  300 
renders  title   unmarketable,  777 
purchaser    may    have    indemnity 

against,  semble,  496 
purchaser  should  inquire  as  to  ex- 
istence of,   183 

assignment  of,  is  breach  of  war- 
ranty, 359 

Easements. 

should    be     inquired    for    by    pur- 
chaser's counsel,   183 
no    breach    of    covenant    for   seizin, 

261 

constitute       breach       of       covenant 

against    incumbrances,    297,  300 

unless    notorious    and    visible    to 

purchaser,  304 
conflict     of     authority     on     this 

point,  307,  308 
in    granted    premises    a    breach    of 

warranty,  375 
measure  of  damages,  413 
render  title   unmarketable,   775 

Ejtctment. 

notice  of,  to  covenantor  and  re- 
quest to  defend.  423 

request  to  prosecute,  427 

by  vendor  against  vendee,  when, 
618 

Election  of  remedies. 

by  purchaser,  3,   13,  234 
is  conclusive,  when  made,  14 

Eminent  domain. 

exercise  of,  no  breach  of  warranty, 
354 

purchaser  charged  with  notice  of 
proceedings,  180 

as  breach  of  covenant  against  in- 
cumbrances, 302,  note  2. 

Encroachments. 

render  title  unmarketable,  789 

Equitable  estate. 

owner  of,  not  entitled  to  benefit  of 
covenants,  378 

purchaser  cannot  be  required  to  ac- 
cept, 731 

Equities. 

doctrine   of   purchaser   without  no- 
tice applies  only  to,  180 
no  application   where    legal   title 

is  outstanding.  180 
assignee  of  covenant  not  bound  by, 
between  original   parties,  389 


Equity.    <See  SPECIFIC  PERFORMANCE, 

RESCISSION,      KEKOBMATIOPT,      Is 

JUNCTION.) 

equitable  remedies  in  affirmance  of 
contract,  479 

in  rescission  of  contract,  089 
will   not   compel   purchaser  to   take 

doubtful  title,  705 
equitable  defenses  allowed   at  law, 

455 

measure  of  damages  in,  490 
qitia  tiinct,  jurisdiction  of,  837 

Eiror  of  law. 

title    under    judicial    sale    not    af- 

fected  by,  88 
renders    title    doubtful    when,    712, 

751 

Estate. 

to  be  considered  in  examination  of 

title,   172,   175 
after-acquired,    enures    to    grantee, 

518 

(See  ESTOPPEL.) 
purchaser     not     required     to     take 

equitable,   731 
nor   defeasible,   735 
covenant  of  seizin  is  broken  if,  it 
defeasible,  259 

Estate  for  life. 

measure  of  damages  where  grantee 

gets  only  an,  275,  412 
outstanding,   is   breach  of   covenant 

against  incumbrances,  297 

Estate  for  years. 

outstanding,   is  breach  of  covenant 

against  incumbrances,  297 
but    not   of   covenant   for   seizin, 

261 

measure    of    damages    on    eviction 
from,  406 

Estoppel. 

grantor    estopped    to    assert    after- 
acquired   title,  518 

as   between   lessor  and   lessee,  520 

as    between    execution    debtor    ami 
purchaser  under  execution,  520 

where    grantor    pays    off    lien    as- 
sumed by  grantee,  520 

where    title    of    grantor    disseizing 
grantee,  is  cured  by  time,  520 

estoppel    binds    heirs   and   devisees. 

521 

but  only  to   the  extent  of  asset* 
received,  521 

heirs  not  estopped  by  lineal  or  col- 
lateral warranties,  521 


888 


INDEX. 


[REFERENCES  ABE  TO  PAGES.] 


Estoppel  —  Continued. 

warrantor  estopped  from  setting  up 

resulting  trust,  522 
no   estoppel    where   covenants    have 

been  extinguished,   522 
no   estoppel    in    cases   of   fraud   by 

grantee,  523 
after-acquired  estate  must  be  held 

in  same  right,  524 
estoppels  must  be  mutual,  525 
mortgagor    estopped    by    his    war- 
ranty, 525 
except    in    case    of    purcnase-money 

mortgage,  525 
mortgagor    estopped    as    against    a 

subsequent   mortgagee,   525 
void  conveyance  operates  no  estop- 
pel, 526 
as   where   the   deed   is   champert- 

ous,  527 
or  executed  in  fraud  of  creditors, 

527 

or  imperfectly  executed,  528 
exceptions,  528 
conveyance  of   public   lands,   528, 

551 

effect   as   actual   transfer   of   after- 
acquired  estate,  529 
subsequent  purchaser  from  grantor 

not  affected,  530,  534 
contrary    rule    in     some    of    the 

States,   531 
subsequent  purchaser  with  notice 

is  bound,  534 

grantee  must  accept  after-acquired 
estate  in  lieu  of  damages,  534 
unless   he  has  been  actually  dis- 
turbed in  his  possession,  *535 
Mr.   Rawle's   dissenting  view,  536 
but  title  must  have  been  acquired 

before   action    brought,   538 
what    covenants    will     pass    after- 
acquired  estate,  539 
any     of     the     covenants     unless 

special  or  limited,  539 
eircuity  of  action  not  avoided  by 

estoppel,  when,  540 
mere  quit   claim   or   release  will 

not  operate  an,  544 
heir   or   remainderman   conveying 
by  quit  claim  not  estopped,  547 
general  covenants  will  not  operate 

an  estoppel,   when,   547 
when  quit-claim   will   operate   an 

estoppel,  549 

Van  Rensselaer  v.  Kearney,  549 
effect  of  covenant  of  nonclaim  by 

way  of  estoppel,  550 
quit-claim  estops  grantor  of  pub- 
lic lands,  when,  551 


Estoppel  —  Continued. 

liduciary  and  ministerial  grantors 

not  estopped,  551 
execution  debtor  not  estopped  by 

sheriff's  deed,  551 
grantee  not  estopped  to  deny  title 

of  grantor,  552 
but   cannot   set   up   adverse   title 

against  him,  552,  697 
except  where  vendor  attempts  to 

convey  public  lands,  406,  552 
or   has   been   guilty  of   fraud  re- 
specting the  title,  552 
or    where    the    grantee    has    been 

evicted,  553 
or  where  the   contract   has  been 

rescinded,   553 
resume1  of  principles,  553 

Eviction.     (See  WARRANTY,  COVENANT 

OF.) 

not  indispensable  to  purchaser's 
action  for  damages,  17 

not  necessary  to  breach  of  covenant 
for  seizin,  256 

actual  and  constructive,  355,  360 

no  compulsory  acceptance  of  after- 
acquired  title  in  case  of,  534 

detention  of  purchase  money  as  de- 
pendent on,  602 

where  contract  is  executory.  602 
executed,  442,  630,  837 

Evidence. 

parol,  admissible  to  show  true  Con- 
sideration, 402 

of  value  of  warranted  premises 
consideration  money  is,  402 

of  paramount  title  in  evictor,  no- 
tice dispenses  with,  423 

parol,  to  show  mistake  in  deed,  567 
must  be  clear  and  positive,  568 
to  remove  doubts  as  to  title,  728 

Examination  of  title. 

should   not   be    left   to   incompetent 

person,  160 
time  allowed  for,   165 
classification     of     inquiries     to     be 

made,  171 

expenses  of,  220,  593 
consequences    of    omission    of,    223, 

241,  394 

Exchange. 

covenants   implied  in,   344 
measure  of   damages   for  breach   of 
contract  to,  218 

Executed  and  executory  contracts, 
what  are,  3 

as  regards  detention  of  purchase 
money,  442,  583.  (See  Cow- 
TBACT.) 


INDEX. 


[REFERENCES   ABE  TO  PAGES.] 


Execution. 

of  deed  by  corporation  or  agent,  4S 
caveat   emptor  applies   to   sale   un- 
der, 57.     (See  CAVEAT  EMPTOH. ) 

Executors  and  administrators. 

caveat  emptor  applies  to  sales  b\, 

108.      (See  CAVEAT   EMPTOR.) 
purchase  of  trust  subject  by,   is 

void,  106 
should  enter  into  special  covenants 

only,    153 

personally  liable  on  general  cove- 
nants, 155 

liable  on  testator's  covenant  of  war- 
ranty, 348 
entitled  to  benefit  of,  when,  348 

Expenses. 

of    examining     title     may     be     re- 
covered, 220,  59:5 
of  perfecting  the  title,  405,  422 
of  defending  the  title,  221,  417,  421 

Experts. 

opinion   of,   as   to   title   not   admis- 
sible,  749 

Express   contract,      i  Sec   AGREEMENT, 
CONTRACT.  ) 

Extinguishment  of  covenants. 

by  reconveyance  to  covenantor,  389 

Fact. 

title   as   dependent   on   question   of, 

710,  713.  714 

mistake  of,  as  ground   for  reforma- 
tion of  deed,  5.')S 
for    rescission    of    executed    con- 
tract, 858 

Failure    of    title.       (See    DEFECTIVE 

TITLE  and  ANALYSIS,  p.  VII.) 
right  to  recover  back  or  detain  pur- 
chase money  on.    (See  PURCHASE 
MONEY,  DETENTION  OF.) 

False  statements.     (See   FRAUD,   DE- 
CEIT.) 

Fees. 

of  counsel  for  examining  title,  lia- 
bility of  vendor  for,  220,  593 
in  defending  title,  221,  417,  421 

Fee  simple. 

estate  sold  presumed  to  be  a,  21 

Fence. 

duty    to    maintain,    is    an    incum- 
brance,  301 

Fiduciary  vendors. 

caveat  emptor  applies  to  sales  by, 

108.      (See  CAVEAT  EMPTOR.) 
covenants  for  title  by,  153 


Forged  instrument. 

lying  in  chain  of  title,  173,  175,  1X2 
registration  does  not  protect  pur- 
chaser, 182 

Fraud. 

as  ground  for  collateral  attack,  105 

of  vendor,  effect  on  purchaser'* 
rights,  233 

purchaser  may  elect  to  rescind  or 
affirm,  234 

fraud  without  injury  gives  no  ac- 
tion, 235 

fraud  of  agent  binds  principal,  236. 
(See  AGENT.) 

what    constitutes    fraud    respecting 

the  title,  237 

concealment  of  defects,  238 
defects  apparent  of  record,  241 
willful  or  careless  assertions,  24! 
existence    of    fraudulent    intent. 

248 
statement  of  opinion,  249 

facts  showing  fraud  must  be  al- 
leged, 252 

burden  of  proof  is  on  purchaser,  2.V5 

fraud  not  merged  in  conveyance, 
661 

of  vendor  bars  right  to  perfect  the 
title,  805 

as  affecting  title  under  judicial  or 
ministerial  sale.  (See  CAVEAT 
EMPTOH.  ) 

as  ground  for  detaining  or  recov- 
ering back  purchase  money,  680. 
834 

right  to  rescind,  waived  when,  685 

Fraudulent  conveyance. 

title  derived  under,  not  marketable. 
716,  n.,  748 

remote  purchaser  under,  chargcu 
with  notice,  when,  174 

will  sustain  transfer  of  after  ac- 
quired title  by  estoppel,  when, 
527 

Further  assurance,  Covenant  of. 
form  and  effect,  438,  439 
what  constitutes  breach,  439 
effect  by  way  of  estoppel,  439 
runs  with  the  land.  440 
measure  of  damages  for  breach,  441 

"  Good  and  sufficient  deed." 

effect   of  agreement    to   make,   3~2 

Good  right  to  convey.    (See  SEISIN.) 

"  Grant,  bargain  and  sell." 
covenants  implied  from  these  words. 
257,  281,  341 


890 


IXDEX. 


[REFERENCES  ARE  TO  PAGES.] 


Guardian. 

caveat   emptor  applies  to  sales   by, 

134 
title  as  affected  by  acts  or  powers 

of,  755,  756,  n. 
in  judicial  proceedings,  756,  n. 

B  eirs. 

liable    on    covenants    of    ancestor, 

345 
entitled  to  benefit  of,  when,  257, 

345 
word,   omitted    from    deed   may   be 

supplied,  563,  n. 

title    as    dependent   on   fact    of   in- 
heritance, 706,   728 

Highway. 

no    breach    of    covenant    of    seisin, 

260 
is   breach    of   covenant   against   in- 

cumbrance,  when,  301 
conflict     of     authority     on     this 

point,  304 

notice  of,  as  affecting  right  to  re- 
scind, 197 

Husband    and    wife.      (See    MARRIED 
WOMEN.  ) 

Idem  sonans. 

cases  of,  as  affecting  title,  763 

Implied  covenants. 

from    words    "  grant,    bargain    and 

sell,"   257,  281,  341 
in  a  lease,  343 
in  an  exchange,  344 
in  partition,  344 
none    from    mere    recitals    in    deed, 

344 

Improvements. 

purchaser  not  allowed  damages  for 

loss  of,  223,  272,  394,  413 
except  in  cases  of  fraud,  395 
and  sometimes  in  equity,  701 
and  except  in  certain  States,  398 

Incapacity. 

of   parties,   title   as    dependent   on, 
172,  182,  767 

Incumbrance.        ( See     INCUMBBANCE, 
COVENANT    AGAINST,     PURCHASE 
MONEY,  DETENTION  OF.) 
operates   no   change   in   title,   2 
definition,   289 
what  constitutes,  290,  776 
to    be    searched    for    in    examining 

title,   178 

concealment   of,   is   fraud,   237,   241 
as  ground  for  detention  of  purchase 
money  596 


Incumbrance  —  Continued. 

where  contract  is  executory,  59(5 
where   contract   is   executed,   442, 
469 

cannot    be    verbally    excepted    from 
covenants,   283 

renders  title  unmarketable,  776 

may  be  discharged  out  of  purchase 
money,   509 

when    subject    to    compensation    or 
indemnity,  491,  496,  823,  827 

vendor    may    be    compelled    to    re- 
move, 483,  516 

right  of  vendor  to  remove,  792 

subrogation    of   purchaser    to   bene- 
fit of,  512 

Incumbrance,  Covenant  against, 
form  and  effect  of,  280 
implied  from  certain  words,  281 
distinguished  from  covenant  to  dis- 
charge  incumbrance,  281 
restrictions  and  exceptions,  282 
must  be  expressed  in  conveyance, 

283 

cannot  be  shown  by  parol,  283 
contrary   rule    in    Indiana,    285,   n. 
assumption   of    mortgage  by  grantee, 

285 
effect  of   conveyance   "  subject   to " 

mortgage,   285 

what  constitutes  breach  of,  289 
mere    existence    of    incumbrance 

operates   breach,   289 
definition    of    term    "  incumbrance," 

290 

pecuniary  charges  or  liens,  290 
notice  of  same  immaterial,  290 
when  taxes  constitute  breach, 

292 

outstanding  estate   in   the   prem- 
ises,  297 
easements     or     physical     incum- 

brances,  300 

building  restrictions,  301 
party  walls,  303 
notice    of    easement    as    affecting 

breach,  304 
conflict  of  decision  on  this  point, 

307 

runs   with    land    for   benefit   of   as- 
signee, 310 

contrary  rule  in  some  States,  312 
measure  of  damages  for  breach   of, 

314 

nominal,  where  no  actual  loss,  314 
judgment    a    bar    to    future    re- 
covery, 316,  324 

where  grantee  discharges  incum- 
brance, 317 

amount  paid  must  have  been  rea- 
sonable, 318 


INDEX. 

[REFERENCES   ARE  TO   PAGES.] 


SIM 


Incumbrance,  covenant  against  —  Con- 
tinued, 
covenantee  not  bound  to  redeem, 

320 
damages   cannot   exceed   purchase 

money  and  interest,  320 
damages    where    incuinbrance    is 

permanent,  322 
of  lessee  against  lessor,  323 
pleadings     must     describe     incum- 

brance,  325 

discharge    of    same    must    be    al- 
leged, 326 

burden  of  proof  on  plaintiff,  326 
detention    of    purchase    money    on 
breach  of  covenant,  469 

Indemnity. 

as    general    rule    purchaser    cannot 

demand,  495 

nor  be  required  to  accept,  830 
against    inchoate    right    of    dower, 

496 

Infant. 

title    as    dependent    on    rights    of, 

755,  756,  n. 
infancy    of    grantor    in    chain    of 

title,   182 

Inheritance. 

words  of,  in  deed,  supplied,  563,  n. 
title,  as  dependent  on  question  of, 
183,  728 

Injunction   against   collection   of  pur- 
chase money, 
where    the    contract    is    executory, 

605 

when    the    contract    has    been    exe- 
cuted, 832 

general  observations,  832 
where  the  grantor  was  guilty  of 

fraud,   834 

injunction    granted    though    no 
breach  of  covenants  has  oc- 
curred, 834 
so,    also,    in    case    of    mistake, 

834 
grantor    cannot    be    forced    to 

action  for  damages,  835 
grantee  setting  up  fraud  as  de- 
.fense  to  action  for  purchase 
money    cannot    have    injunc- 
tion, '835 
want    of    opportunity    to    defend 

at  law,  835 

injunction  denied,  when  de- 
fense may  be  made  at 
law.  836 

or  might  have  been  so  made, 
836 


Injunction  against  collection   of  pur- 
chase money  —  Continued. 

but  granted  if  defense  pre- 
vented by  fraud,  accident  or 
mistake,  836 

and   where   no  opportunity  for 

defense,  836 
as  in  case  of  enforcement  of 

deed  or  trust,  836 
or    in    strict    foreclosure    of 

mortgage,   836 

and    in   case  of   after-discov- 
ered facts,  837 

remedy  on   covenants   must  lx> 

unavailing,  837 

where   grantor    is   insolvent   or   a 
non-resident,    granted,    837 

though  there  lias  been  no 
breach  of  covenants.  837 

this  upon  the  principlt  of  quia 
timet,  837 

but  suit  must  hnvo  been  prose- 
cuted or  threatened  by  ad- 
verse claimant,  837 

except  in  certain  of  the  States, 
849 

insolvency  must  be  alleged  in 
the  bill,  839 

transfer  of  negotiable  securi- 
ties, will  be  enjoined,  840 

no  perpetual  injunction  where 
purchaser  must  accept  com- 
pensation, 841 

bill  must  allege  clear,  out- 
standing title,  841 

and  that  claimant  is  prosecut- 
ing or  threatening  suit,  841 

mere  doubts  as  to  the  title  in- 
sufficient, 841 

complainant  must  confess  judg- 
ment at  law,  when,  842 

injunction       granted       against 

transferee  of  note,  842 

unless    purchaser    for   value. 

without  notice,  etc,  842 

if   injunction   perpetual,   plain- 
tiff should  reconvey,  842 
where   estate   is   incumbered.   S4:'. 

unimportance  of  non-residence 
or  insolvency  of  grantor, 
843 

grantee  cannot  pay  off  lien  ami 
net  it  up  against  grantor. 
844 

incumbrance  no  ground  for  re- 
scission. 844 

injunction  against  foreclosure 
of  purchase-money  mortu'.';-  • 
denied,  844 

except  in  case  of  prior  incum- 
brance, 84. "> 


892 


INDEX. 


[REFERENCES  ARE  TO  PAGES.] 

Judgments. 


Injunction  against  collection  of  puv- 
chase  money  —  Continued, 
denied    where    no    covenants    for 

title,  845 
presumptions  against  grantee  in 

such  cases,  846 

temporary  and   perpetual    injunc- 
tion, 846 
effect   of    perpetual   injunction, 

847 

damages   on   dissolution   of    in- 
junction, 847 
resumS,  847 

•where  no  present  right  to  re- 
cover substantial  damages, 
849 

absolute      want      of     title      as 
ground   of    injunction,    849 
\\ithout    regard    to    non-resi- 
dency    or     insolvency     of 
grantor,    849 

or  to  threats  or  prosecution 
of  suit  by  adverse  claim- 
ant, 849 

or  to  reconveyance  by  gran- 
tee, 849 
this     doctrine     enforced     in 

Va.  and  W.  Va.,  850 
not      recognized      elsewhere, 

850 

rested  upon  ground  of  inade- 
quacy of  remedy  at  law, 
850 

and    as    protection    to    pur- 
chaser under  a  trust,  851 
but  complaint  must  show  a 
clear      outstanding      title, 
851 

mere  doubts  as  to  title  in- 
sufficient, 851 

Insolvency. 

of    covenantor    as    ground    for    de- 
taining purchase  money,  837 

Installments. 

tender     of     deed     where     purchase 
money  payable  in,  206 

Interest. 

as    element    of   damages,    221,    414, 

490 
set    off    against    rents    and    profits, 

when,   221 
on    purchase   money    while    title    is 

being  perfected,  819 

Interlineations. 

to  be  noted  in  examining  title,  173 

Joint  tenants. 

should  covenant  severally,  153 


where  void,  title  under,  126 
subrogation   to  benefit  of,    135,   512 
should  be  noted  in  examining  title, 

177 
no    breach    of    covenant    for    seisin, 

261 
are  breach  of  covenant  against  in- 

cumbrances,   290 
of    eviction    without    dispossession 

no  breach  of  warranty,  365 
several    separate,    may    be    entered 

on  warranty,  when,  379 
when    conclusive   evidence   of   para- 
mount title,  423 
apparently   unsatisfied    render   title 

unmarketable,  786 
must    be    confessed    on    application 

for  injunction,   842 

Judicial  sales.    (See  CAVEAT  EMPTOR.  ) 
caveat  emptor  applies  to,  76 
title   as   dependent   on    validity    of, 

88,  751,  753,  755 
not    affected    by    reversal    of    de- 
cree, 89 

purchaser  at,  entitled  to  benefit  of 
covenants,  382 

Jurisdiction. 

of  officer  taking  certificate  of  ac- 
knowledgment, 57 

want  of.  exposes  judgment  to  col- 
lateral attack,  93 

Jury. 

fact  of  notice  to  defend  ejectment, 
question  for,  430 

Laches. 

in  objecting  to  title  is  waiver  of  ob- 
jection,   191 

exceptions  to  this  rule,  192 
in    suing   for    reformation   of   deed, 

569 
mistakes    resulting    from,    not    re- 

lievable,  566,  865 
of   vendor   in   perfecting   title,   bars 

his   right,   807 

Land. 

will  not  pass  under  word  "  assets," 
52 

warranty  does  not  extend  to  quan- 
tity o'f,  336 

value  of,  at  time  of  sale  is  meas- 
ure of  damages,  212,  389 

Landlord  and  tenant.    (See  LEASE.) 

Lease. 

lessor  must  covenant  generally,  152 
to    be    noted     in     examination    of 
title,   176 


INDEX. 

(REFERENCES   ARE  TO   PAGES.] 


89:! 


Lease  —  Continued, 
outstanding,  is  no  breach   of   cove- 
nant of  seisin,  262 
but  is  breach  of  covenant  uguin>t 

incumbrances,  297 
covenant  implied  in  lease,  343 
tortious  disturbances  by  lessor,  351 
title    of    lessor    not    usually    exam- 
ined,   152,  408,   710 
damages  on  eviction  of  lessee,  406 
lessee  may  recover  back  rent,  when, 
408 

Legal  estate. 

vendor    need    not    have,    but    must 
obtain,  483,  795,  806 

Legal  process. 

not   necessary   to   eviction  of  cove- 
nantee,  358 

Lien. 

should  be  noted  in  examination  of 

title,    177,    178 
is    breach    of    covenant   against   in- 

cumbrance,  290 
of    purchaser    on    failure    of    title, 

624 

does  not  exist  if  vendor  is  solv- 
ent, 625 

nor    as    against    purchaser    with- 
out notice,  625 

Life  estate.    (See  ESTATE  FOB  LIFE.) 

Limitations,  Statute  of. 

begins  to  run  on  covenant  of  seisin, 

when,  269 
on   covenant   of  warranty,   when, 

357 

title     under,     is     marketable,    737. 
(See  DOUBTFUL  TITLE.) 

liquidated  damages. 

in   excess   of   purchase   money  may 

be  recovered,  230 
but  amount  must  be  reasonable* 

230 

and  not  a  penalty  or  forfeiture, 
231 

Lis  pendens. 

should  be  noted  in  examining  title, 

178,  179 

not  an  incumbrance,  when,  289 
renders    title    unmarketable,    when, 

781 

Loss    of    bargain.       (See    DAMAGES, 

MEASURE  OF.) 
Lots. 

failure  of  title  to  part  of  several, 
826 


Marketable     title.       (See     DOUBTFUL 

TITLE.  ) 
original    technical   meaning  of   thi* 

expression,  706 
modern    use   of   this   expression.    9, 

706 
doctrine  of,  no  longer  restricted  to 

equity,  717 

purchaser  may  demand,  705 
question  of,  is  for  the  court,   710, 

749 
opinions    of    counsel    on    question. 

not  admissible,  710 
classification  of  cases  of,  711,  749 
classification  of  cases  of  unmarket- 
able, 713,  749 
title  by  adverse  possession,  737 

Married  women.    (See  DOWER.) 

right  to  require  covenants  from,  1.V2 

bound   by   covenants,   344 

estopped  by  their  covenants  in 
some  States,  542 

acknowledgment  of  deed.  (See 
ACKNOWLEDGMENT.  ) 

when  deeds  of,  will  be  reformed, 
576 

coverture  to  be  noted  in  examin- 
ing title,  182 

Mechanic's  lien. 

to  be  noted  in  examination  of  title. 
178 

Meiger. 

of  executory  contract  in  deed,  451. 

656 
of   verbal    stipulations    as    to   title 

in   deed,   451,   656 
cases    in    which    merger    does    not 
occur  collateral   stipulations  of 
which    deed    not    necessarily    » 
performance,    451 
where  deed  is  void,  654 
rule  in  Pennsylvania,  658 
rule  in   Indiana.  285,  n. 
fraud  not  merged  in  deed,  661 

Mesne  profits.    (See  INTEREST.) 

as   set   off   against    purchaser's   de- 
Tim  ml    for   interest,   221,    414 
purchaser  not  liable  to  vendor  for, 
when,  221,  698 

Metes  and  bounds. 

not  indispensable  to  description  in 

deed,  51 

where   uncertain   or    impossible,   5 
warranty  does  not  extend    to,   336 

Ministerial  vendors. 

car  eat  em  p  tor  applies  to  sales  by, 
76,  108,  118,  132 


894 


INDEX. 


[EEFEBENCES  ABE  TO  PAGES.] 


Ministerial  vendors  —  Continued, 
general      covenants      not      required 
from,    157 

Misnomer. 

as  objection  to  sufficiency  of  deed, 
45 

as  objection  to  sufficiency  of  cer- 
tificate of  acknowledgment,  60 

title  as  dependent  on,  761,  n. 

Misrepresentations.     (See  FBAUD,  DE- 
CEIT.) 

Mistake. 

as  ground  for  reformation  of  deed. 

(See  REFORMATION.) 
rescission  of  executed  contract,  853, 

858 

mistake  of  fact,  858 
.  mistake    as    to    fact   on   which 
title  depends,  859 

as  where  estate  has  been  di- 
vested by  happening  of  some 
event  of  which  the  parties 
are  ignorant,  859 

and  where  subject-matter  or 
contract  has  no  existence, 
859 

but  mere  ignorance  of  out- 
standing title  in  a  stranger 
no  ground  for  relief,  860 

except  when  grantee  lias  pur- 
chased his  own  estate,  igno- 
rant of  his  title,  863 

mistake  cannot  be  availed  of 
at  law,  863 

mistake  as  to  existence  of  the 
premises,  864 

where  deed  does  not  convey 
the  lands  purchased,  864 

grantee  must  reconvey  the 
premises,  865 

mistake  must  not  have  arisen 
from  negligence,  865 

mistake  must  have  been  ma- 
terial, 866 

mistakes   as   to  quantity,   866 
mistake  of  law,  867 

in  many  cases  no  ground  for 
relief,  867 

but  relief  granted  in  some 
cases,  868 

distinction  between  ignorance 
of,  and  mistake  of  law,  870 

"  ignorance  of  law  does  not 
excuse  "  applies  only  to  the 
general  public  laws,  873 

erroneous  construction  of  de- 
vise or  grant,  873 

where  true  construction  of  the 
law  is  doubtful,  874 


Mistake  —  Continued. 

misrepresentation    of    law     by 

vendor,    875 
mistake  must  be  mutual,  875 

Money  had  and  received. 

action   for,   where  title  has   failed, 

588 
expenses   of   examining   title   not 

recoverable  in,  593 

Mortgage.     (See  INCUMBBANCE,  PUB- 
CHASE  MONEY.) 
general  covenants  must  be  inserted 

in,    152 

to  be  noted  in  examining  title,  177 
in    form     an    absolute    deed,    pur- 
chaser without  notice  of,  181 
operates  no  breach  of  covenant  of 

seisin,  260 
is   breach    of   covenant    against    in- 

cumbrances,  290 

excepted     by    parol     from    cove- 
nants, 283 
effect   of   purchase   "  subject  to," 

284 

eviction   under,   is   breach   of   cove- 
nant of  warranty,  372 
for  purchase  money,  foreclosure  of, 
where   title   has   failed,   457,    844 
mortgagor    estopped    by    covenants 

in,  525 
unless  given  for  purchase  monev, 

386,   525 
detention  of  purchase  money  where, 

exists,  469,  596 

renders    title    unmarketable,    when, 
780,  786 

Municipal  corporation. 

cannot   warrant  title,  349 

Negligence.    (See  LACHES.) 

mistake  resulting  from,  no  ground 

for   reformation,   566 
nor  for  rescission,  865 

Nominal    damages.       (See    DAMAGES, 

MEASUBE  OF.  ) 
what  are,  210 
for  inability  to  convey  good   title, 

212 
on    breach    of   covenant   for    seisin, 

when,  274 

against   incumbrances,   314 
judgment    for,    bars    second    action 

on  same  covenant,  316 
but  not   on  other  covenants,  274 

Non-claim,  Covenant  of. 

equivalent    to    covenant    of    special 
warranty,  332 


INDEX. 


895 


[REFERENCES  ABE  TO  PAGES.] 


Non-claim,  Covenants  Of  —  Continued, 
will    operate   an    estoppel    in    some 
States,  550 

Non-residence. 

as  ground   for   purchaser's   lien   on 

the  premises,  625 
as   ground    for   enjoining   collection 

of  purchase  money,  837 
title    as    dependent   on    proceedings 

in  case  of,  753,  n. 

Notice. 

of  incumbrance,  wnen  immaterial 
to  action  for  breach  of  cove- 
nant, 290 

when   material   in    case   of   phys- 
ical incumbrance,  304 
of   defect    does   not    affect    liability 

on  warranty,  335 
as  affecting  right  to  rescind  con- 
tract, 195,  453,  600 
rule  in  Texas  and  Pennsylvania, 

472,   666,  668 

to  covenantor  of  ejectment  and  re- 
quest   to    defend,    423.       (See 
WARRANTY.) 
not  indispensable  to  recovery  on 

warranty,  430 
necessary    to    affect    assignee    with 

equities,   389 

purchaser    of    after-required    estate 
from     covenantor     without     pro- 
tected, 530.     (See  ESTOPPEL.) 
deed  recorded  prior  to  inception  of 

grantor's  title,  not,  530 
of  intent  to  rescind,  578 
time  made  material  by,  813 
record  as  notice  to  purchaser,  241, 
668 

Objections. 

to  title,  waiver  of.       (See  WAIVER 

OF  OBJECTIONS.) 
summary  of  different  sources  of, 

176 
to  deed,  should  be  seasonably  made, 

73 
and  to  abstract  of  title,  167 

Officer. 

of  corporation,  should  execute  deed, 

how,  48 

how  acknowledge,  61 
caveat   emptor  applies  to  sales  by, 

118,   132 
covenants  cannot  be  required  from 

157 

taking     certificate     of     acknowledg 
ment.    (See  ACKNOWLEDGMENT.) 
title  as  dependent  on  powers  of 
762,  n. 


Omissions.    (See  MISTAKE.) 

from  deed  as  ground  for  reforma- 
tion, 558 

Opinion. 

mere  expression  of,  as  to  title,  no 
evidence  of  fraud,  249 

of  conveyancing  counsel  inadmis- 
sible on  question  of  title,  710, 
749 

Orphan's   court    sales.      (See    CAVEAT 
EMPTOB.  ) 

Paramount  title. 

in  a  stranger,  no  breach  of  war- 
ranty, 355 

must  be  hoatilely  asserted  to  con- 
stitute breach  of  warranty,  367, 
373 

notice  to  defend  ejectment  dis- 
penses with  proof  of,  in  evictor, 
423 

need    not    be    set    forth    with    par- 
ticularity  in   pleading,   434 
but     eviction     under     must     be 
averred,  434 

outstanding,  as  ground  for  detain- 
ing purchase  money,  451,  605,  630. 
832.  (See  PURCHASE  MONET  or 
LANDS.  ) 

purchaser  may  buy  in,  506 

but  cannot  use  to  defeat  vendor's 

title,  552 
exception,  552 

Farol  agreements.    (See  MERGER.) 
as  to  removal  or  assumption  of  in- 
cumbrance,   283 

as  to  title,  merged  in  deed,  when. 
451,  656 

Partial  failure  of  consideration, 
as    ground    for    detaining   purchase 
money,  461 

Particulars  of  sale. 

usually     prepared     and     circulated 

before  day  of  sale,  27 
should  state  defects  of  title,  30 

Parties. 

names  of,  must  be  inserted  in 
deed,  44 

competency  of,  to  be  noted  in  ex- 
amining title,  172,  175,  182 

bound  and  benefited  by  covenant 
of  warranty,  344 

to  suit  for  rescission,  704 

title   as   dependent   on   want   of,   to 

suit,   757 
competency  of,  to  deed,  767 


896 


INDEX. 


[REFERENCES  ABE  TO  PAGES.] 


Partition. 

covenants  implied  in,  when,  344 
title   as    dependent    on    proceedings 
in,  752,  754,  n. 

Partners.     (See  JOINT  TENANTS,  TEN- 
ANTS IN  COMMON.) 
how  should   execute   deed,   49 
how  deed  executed  to,  46 

Party  wall. 

is  a  breach  of  covenant  against  in- 

cumbrances,   when,   303 
when  not,   303 

renders    title    unmarketable,    when, 
779 

Patent  defects. 

vendor  not  bound  to  call  attention 
to,  240 

Patents  of  land. 

lying    in    chain    of    vendor's    title, 
*  174 

purchaser    charged    with    notice    of 
defect  in,  when,  174 

Payment.      (See    PUBCHASE    MONEY, 

DETENTION  OF.) 

of  purchase  money  is  waiver  of  ob- 
jection to  title,  when,  193 
as  condition   precedent  to  action 

for  damages,    15 
suit    for    specific    performance, 
485 

Perpetuities. 

to  be  noted  in  examining  title,  175 

Personal  expenses. 

when      allowed      as      damages      on 
breach   of   warranty,   422 

Personal    representatives.      (See    EX- 
ECUTORS AND  ADMINISTBATOBS.) 

Few  assessments. 

when  no  breach  of  covenant  against 
incumbrances,  293,  n. 

Pleadings.    (See  the  several  covemants.) 

Possession. 

taking,    when    waiver    of    objection 

to  title,  189 
inability  to  get,   is   a   constructive 

eviction,  360 
of  stranger  is  notice  to  purchaser, 

182 
must  be  restored  to  vendor,  when, 

615 

vendor  may  recover,  when,  618 
title  by  adverse,  is  marketable,  737 
detention  of  purchase  money  where, 

undisturbed,  630 


Possibility. 

bare,  when  no  objection  to  title, 
707,  743,  n.,  755,  n. 

Power. 

of  parties  to  be  noted  in  examin- 
ing title,  48,  172,  175,  182 

defective  execution  of  statutory, 
not  aided  in  equity,  569 

title  as  dependent  on,  and  compe- 
tency of  parties,  767,  769,  n. 

Power  of  attorney. 

validity  of  deed  executed  under,  48 

to  execute  gives  power  to  acknowl- 
edge deed,  61 

title,  as  dependent  upon  exercise 
of,  771,  n. 

entry  of  satisfaction  under.  788 

Presumptions. 

every  title  dependent  to  some  ex- 
tent on,  747 

from  lapse  of  time,  title  as  de- 
pendent upon,  744 

of  death,  title  as  dependent  upon, 
745 

of  satisfaction  of  incumbrance,  787 

Principal.     (See  AGENT,  ATTORNEY.) 
is  affected  by  agent's  fraud,  236 
but  not  liable  in  damages,  236 

Privity  of  estate. 

essential  to  doctrine  of  estoppel, 
534 

Privy  examination  ot  married  women. 
(See  ACKNOWLEDGMENT.) 

Public  lands. 

estoppel  of  grantor,  528,  551 
entry  by  vendee  of,  405 

Public  road.    (See  HIGHWAY.) 

Purchase. 

of  paramount  title  is  constructive 
eviction,  when,  369 

Purchase-money  mortgage. 

failure  of  title  no  ground  for  en- 
joining foreclosure  of,  457 

Purchase  money  of  lands, 
detention  of,  on  failure  of  title,  582 
general  principles,   582 
where  the  contract  is  executorv, 

586 

general  rule  that  purchase 
money  may  be  detained,  586, 
589 


IXDEX. 

[REFERENCES  ARE  TO  PAGES.] 


81)7 


Purchase  money  of  lands  —  Continued. 

forfeiture  of  deposit  by  pur- 
chaser, 590 

exceptions  to  and  qualifica- 
tions of  general  rule,  591 

what  objections  may  be  made 
to  title,  593,  705 

expenses  of  examining  the 
title,  593 

burden  of  proof  lies  on  pur- 
chaser, 594 

right  to  detain,  where  estate 
is  incumbered,  596 

taxes  and  assessments,  597 

application  of  purchase  money 
to  incumbrances,  598 

buying  with  knowledge  of  de- 
fect or  incumbrance,  GOO 

chancing  bargains,  601 

burden  on  vendor  to  show  as- 
sumption of  risk,  602 

effect  of  accepting  title  bond, 
602 

consideration  of  sealed  instru- 
ment may  be  inquired  into, 
605 

injunction  against  collection  of 

purchase   money,  '605 
in  cases  of  fraud,  606 
not    necessarily    a    disaffirm- 

ance  of  contract,  607 
bill  must  aver  tender  of  pur- 
chase money,  608 

effect  of  transfer  of  purchase- 
money  note,  609 

refusal  of  vendor  to  convey 
for  want  of  title,  609 

purchaser  must  show  tender  of 
purchase  money,  188,  610 

where  purchase  money  is  pay- 
able in  installments,  611 

payment  of  purchase  money 
not  a  condition  precedent, 
when,  613 

purchaser  must  show  offer  to 
rescind,  613 

pleadings  and  burden  of  proof, 
613 

purchaser    must    restore    prem- 
ises to  vendor,  615 
fact     that     he     has     made 
improvements    immaterial, 
618 
vendor    must    be    placed    in 

st'itii   quo,  619 
restoration    a    condition    pre- 
cedent to  rescission,  620 
rule   in   Pennsylvania.   621 
restoration  in  cases  of  fraud. 
622 

57 


Purchase  money  of  lands  — Continued, 
when  purchaser  need  not  re- 
store premises,  624 
where    vendor    refuses    to 

receive  them,  024 
where   detention    necessary 
for     purchaser's     indem- 
nity, 624 

purchaser's    lien    for    pur- 
chase money,  625 
where    title    fails    to    part 

only,  626 
where  the  contract  is  void, 

628 
where    covenants    for    title    have 

been  broken, 
general  rule,  442 
cannot  detain,  where  no  breach 

of  covenants,  445 
exception  to  this  rule,  450 
merger     of     prior     agreements, 

451 
purchase    with     knowledge    of 

defect,  453 
recoupment,  454 
recoupment  in  foreclosure  suit, 

457 

partial     failure    of    considera- 
tion, 461 

assumpsit  to  try  title.  464 
what   constitutes   eviction,   465 
purchase   of   outstanding   title, 

465 

discharge  of  incumbrances,  469 
rule  in  Texas,  472 
rule  in  South  Carolina,  475 
pleadings,  477 
resumC,  455,  478 
where     covenant    of     seisin     ban 

been   broken,  630 
semble   that    purchaser    may    de- 
tain in  some  of  the  States.  632 
though   he  has   not  been  evicted, 

632 

provided  there  is  a  moral  cer- 
tainty of  eviction,  644 
and  provided  he  reconveys  the 

premises,  644 
breach   of   this  covenant  as  to 

part  of  the  premises,  646 
where    covenants    for    title    have 

not   been    broken,   443 
general    rule    is   that    purchase 
money    cannot    be    detained. 
443 

except    in   cases   of    fraud.   680 
and    where    equity    exercises    a 

f/niti   tiniet  jurisdiction,  837 
where    there    are    no    covenants 
for  title,  MS' 


898 


INDEX. 

[BSFXBZNCES  ABE  TO  PAGES.] 


Pwchase  money  of  lands  —  Continued, 
general   rule  is  that  purchaser 

cannot  detain,  648 
reasons  for  this  rule,  649,  6-50 
want  of   title   is   not   of  itself 

a  mistake.   652 

purchaser     should     be     subro- 
gated    to    benefit    of    incum- 
brance,  653 
exceptions      to     general      rule 

above,  654 
where    the    deed    is    absolutely 

void,  654 

merger     of     all     prior     agree- 
ments   respecting    the    title, 
656 
what    agreements    not    merged 

in   conveyance,   659 
fraud    not    merged    in    convey- 
ance, 661 

rule  in  Pennsylvania  as  to  de- 
tention of  purchase  money, 
665 
absence     of     covenants     for 

title  immaterial,  665 
unless   purchaser   had   notice 
of  defective  title,  665,  668 
constructive      notice      insuf- 
ficient,  668 
adverse   title   must   be   clear 

and  undoubted,  667 
incumbranee  must  equal  un- 
paid purchase  money,  667 
purchaser's  risk  of  the  title, 

when  presumed,  668 
no   presumption   from   notice 
of  pecuniary   incumbranee, 
when,  670 

presumption  where  deed  con- 
tains   covenants    for    title, 
671 
no     relief     unless     covenants 

have   been   broken,   671 
no  relief  by  way  of  recover- 
ing    back      the      purchase 
money,  672 
Pennsylvania    rule    does    not 
apply     to     sheriff's     sales, 
674 
nor  to  judicial  or  ministerial 

sales,  674 
detention    or    restitution    in    case 

of  fraud,  680 

purchaser     may    always    recover 

back    or    detain,    in    cases    o: 

fraud,   680 

whether  contract  is  executory  or 

has  been  executed,  680 
whether    there    are    or    are    nol 
covenants  for  title,  680,  683 


Purchase  money  of  lands— Continued, 
whether  covenants  have  or  have 

not  been  broken,  680,  684 
purchaser     electing     to     rescind 

must  notify  vendor,  680 
purchaser   may   affirm   instead  of 

rescind  contract,  681 
concurrent    remedies    in   cases   of 

fraud,   683 
may  be  availed  of  as  defense  at 

law,  685 

what   amounts  to  fraud  by  ven- 
dor, 685 

waiver  in  cases  of  fraud,  685 
by    acceptance    of    conveyance 
with     knowledge     of     fraud, 
685 

by  laches  and  delay,  686 
purchaser  does  not  waive  dam- 
ages   bv    affirming    contract. 
687 
may   be    recovered   back  on   failure 

of  title,  when,  582 
where  contract  is  executory,  582. 
(See    above.    DETENTION    OF 
PURCHASE  MONET,  and  582.  > 
general    rule    is   that    purchase 
money     may     be     recovered 
back,  586 

where   vendor    wrongfully   con- 
veys away  the  premises,  594 
where     vendor     tenders     insuf- 
ficient deed,  595 
purchaser  at  judicial  sale  can- 
not recover  back,  595 
where    title    is    unmarketable, 
595,    705.       (See    DOUBTFUL 
TITLE.) 

fact  that  contract  was  within 
Statute  of  frauds  immate- 
rial, 596 

cannot  recover  more  than  pur- 
chase money,  interest  and 
expenses,  596 

where     contract     has     been     exe- 
cuted    cannot     be     recovered, 
back  eo  nomine,  676 
purchaser's    remedy    is   on   the 

covenants,  676 

cannot     recover    on    contempo- 
raneous   parol    agreement    to 
refund.   678 
nor    maintain    bill    in    equity 

against  vendor,  645,  678 
rule  does  not  apply  in  case  of 

mistake,  679 
nor    where    deed    is    absolutely 

inoperative.   679 

title  as  dependent  on  duty  to  see  to 
application  of,  783 


INDE*. 


[REFERENCES   ABE  TO  PAGES. 1 


Purchaser. 

remedies  of,   on  failure   of  title,  3 
right    of    purchaser    to    action    for 

breach   of  contract,   11 
must  have  paid  purchase  money 

in  full,  15 

in    possession    may    sue    for    dam- 
ages,  17 
right  to  require  a  title   free  from 

defects,  20,  705 
may     reject     conveyance     tendered, 

when,  40 
entitled     to     what     covenants     for 

title,    143 
bound    by    maxim    caveat    emptor, 

when,  75 

may  require  abstract  of  title,   159 
entitled    to    time    for    examination 

of  title,  165 
should     make     what    inquiries     in 

pets,  182 
what  acts  of,  amount  to  waiver  of 

objections  to  title,  184 
must    tender    purchase   money    and 

demand  deed,  when,  200 
may    maintain    action   on   the   case 

for  deceit,  233 
may  surrender  possession  to  owner 

of  better  title,  363 
may    detain     purchase    money     on 

failure    of    title 
where  the  contract  is  executory, 

577,  582,  689 
where   covenant  of  warranty  has 

been  broken,  442 
on  breach  of   covenant  of  seisin, 

semble,  630 

in  cases  of  fraud,  680,  853 
cannot   detain    purchase   money   on 

failure  of  title 
where     no    covenants     for    title, 

648 
except   in   certain    States,   665, 

674 
where    objections    to    title    have 

been  waived,  184 
may  recover  back   purchase   money 

on  failure  of  title 
where  the  contract  is  executory, 

583 
but  not  after  contract   has  been 

executed,  676 
his  remedy  is  on  the  covenants 

if  any,  676 
entitled   to   specific   performance   of 

the  contract,  when,  470 
and  to  damages  in  equity,  when, 

487 

may  elect  to  take  the  title  though 
defective,   491 


Purchaser  —  Continued. 

or  with  compensation  for  defect*, 

491 

has  a  right  to  perfect  the  title.  50(5 
estopped   to    deny   title   of    vendor, 

when,  552,  697 

subrognted  to  Item-lit,  nf  lien.  512 
may     compel     removal     of     incuro- 

brances,  when,  516 
may    compel    transfer    of    after-ac- 
quired title,  516 

entitled   to   reformation    of   convey- 
ance, when,  5.").i 
may  rescind  contract  on  failure  of 

title,  when,  577,  689 
by  notice  without  suit,  577 
by     proceedings    at    law    or    in 

equity,  582,  689 
must  restore  premises  to  vendor  on 

rescission,  615 
but  has  lien  for  purchase  money, 

when,  625 

cannot  be  required  to  accept  doubt- 
ful title,  705 
may    require    record    title,    when, 

724 
cannot    be    compelled    to    buy    a 

law-suit,  734 

compelled    to    take    title    by    ad- 
verse possession,  when,  737 
must  take  title  with  compensation 

for  defects,  when.  822 
may   enjoin    collection   of   purchase 

money,  when,  605,  832 
relieved"  where  subject   of  contract 

does  not  exist,  860 
and   where  he  buys  his  own  es- 
tate, 863 
and    in    other    cases    of   mistake, 

858,  866 
and     wherever     the     vendor     is 

guilty  of  fraud,   834,   853 
duty  to  see  to  application  of  pur- 
chase money,  783 

Purchaser's  defenses.     (See  PURCHASE 

MONEY  OF  LANDS.) 
to  action  for  breach  of  contract,  18 
to  suit  for  specific  performance,  692 

Purchaser  without  notice. 

not  protected  where  vendor  had  no 

actual  legal  title,  ISO 
is     protected     against    equities    in 

third  persons,  180 
of  equities  between  covenantor  and 

covenantee,   389 
of    after-acquired    estate    protected, 

530 
record  as   notice  to  purchase,  241, 

668 


900 


INDEX. 


[REFERENCES   ABE  TO  PAGES.] 


Qualified  covenants, 
express     agreement     will      restrict 

covenant  of  warranty,  338 
general     covenants     not    restrained 

unless  intent  clearly  appears,  338 
subsequent    limited    covenant    will 

not      restrain      prior      covenant, 

when,  338 
restrictive   words   in   first   covenant 

extend  to  all,  when,  338 
general    covenant   does   not  enlarge 

subsequent  limited  covenant,  339 
restrictive    words    in    one    will    not 

control    other    covenants,     when, 

339 

equity  will  reform  deed  by  insert- 
ing restriction  or  qualification, 

340 

Quantity. 

covenant  of  warranty  does  not  ex1- 

tend  to,  337 
purchaser    must    accept    title    with 

compensation    for    loss   of   small, 

of  estate,  when,  822 

Quia  timet. 

equity  will  exercise  this  jurisdic- 
tion on  failure  of  title,  when, 
837 

Quiet  enjoyment,  Covenant  for.  (See 
WARRANTY,  COVENANT  OF.) 

same  in  effect  as  covenant  of  war- 
ranty, 436 

what  constitutes  breach,  437 

implied  in  leases,  343 

tortious  disturbance  by  landlord  is 
breach  of,  353 

Quit  claim.  (See  COVENANTS  FOB  TITLE.) 

what  is,  140 

agreement  to  convey  by,  36 

purchaser   accepting   cannot   detain 

purchase  money,  648 
except  in  case  of  fraud,  680 

passes  benefit  of  covenants  for 
title,  381 

but  will  not  transfer  after-ac- 
quired title,  when,  529 

Railway. 

when  existence  of,  is  breach  of 
covenant  against  incumbrances, 
304 

Rebutter. 

operation  of  covenants  for  title  by 

way  of,  536 
Recitals. 

in  deed  put  purchaser  upon  no- 
tice, 173 

no  covenants  implied  from  mere, 
344 


Recitals  —  Continued. 

sometimes  operate  as  an  estoppel, 
344 

Recognizance. 

to  be  noted  in  examining  title,  178 

Reconveyance. 

on    detention    of    purchase    money 

where     breach     of     covenant     of 

seisin,  634,  644 
on   rescission  of   executed   contract. 

854,   855 

Record. 

defects  of  title  apparent  from  pub- 
lic, 176 

purchaser  charged  with  notice 
from  public,  when,  241 

when  purchaser  may  require  good 
title  of,  24,  724 

cannot  be  collaterally  attacked  on 
question  of  title,  when,  88 

title  as  dependent  on  sufficiency  of, 
.761,  762,  n. 

in  ejectment  made  evidence  against 

vendor  by  notice,  423 
Recording  acts. 

notice,  as  between  vendor  and  pur- 
chaser, by  virtue  of,  241 
record    of   deed    prior    to   inception 
of  grantor's  title,   530 

Recoupment. 

distinguished  from  set-off,  456 
detention    of    purchase    money    by 

way  of,  454 
on    foreclosure    of    purchase-money 

mortgage,    457 

Reference  of  title  to  master  in  chan- 
cery. 

title  will  be  referred,  when,  816 
when,  is  matter  of  right,  816 
denied  where  purchase  was  a  chanc- 
ing bargain,  817 
and    where    the    court    is    satisfied 

about  the  title,   817 
at  what  stage  of  proceedings  refer- 
ence is  directed,  818 
procedure  on,   818 
costs  of.  how  decreed,  818 

Reformation  of  the  conveyance. 

by  insertion  of  covenants  for  title, 
340 

is  a  familiar  ground  of  equitable 
jurisdiction,  555 

is  a  species  of  specific  perform- 
ance, 555 

plaintiff  should  first  have  ten- 
dered corrected  deed,  556 


INDEX. 

[REFERENCES   ARE  TO  PAGES.] 


901 


Reformation  of  the  conveyance  —  Con- 
tinued. 

unless    defendant    has    refused    or 
wus  incompetent  to  execute  same, 
556 
and  except   in   suit  to  reform  and 

foreclose  mortgage,  556 
defendant  refusing  to  correct  must 

pay  costs,  556 

bill  must  contain  prayer  for  refor- 
mation,  557 
but  held  that  prayer  for  "  other  and 

further  relief "  sufficient,  557 
reformation   of  deed   does  not  con- 
travene   Statute    of   Frauds,    557 
equities  of  both  parties  will  be  en- 
forced,  557 
adverse    possession   by   stranger   no 

objection  to,  558 
purchaser  under  void  sheriff's  sale 

cannot  sue  for   reformation,  558 
how    mistakes    in     recording    deed 

corrected,  558 
mistake    of    fact     in    insertion    or 

omission   relievable,   558 
contents  as  intended  but  founded 

in  mistake  of  fact,  559 
mistake   in   wills   cannot   be   cor- 
rected, 560 
patent  ambiguity  in  a  deed  may 

be  corrected,  560 
reservations  will   not  be  inserted 
unless    omitted    through    fraud 
or  mistake,  560 

equity   will    insert   omitted   cove- 
nants for  title,  560 
unless  purchaser  knew  character 

of  the  deed,  560 

ignorance  of  defective  title  no 
ground  for  inserting  warranty, 
560 

mistake  of  law  no  ground  for  ref- 
ormation, 560 

contrary  view  in  some  cases,  561 
where  deed  fails  to  express  inten- 
tion of  parties,  561 
distinction    between    reformation 

and  rescission,  562 
court    merely     enforces     original 

contract,  5(i2 
what    is    mistake    of    fact,    and 

what  mistake  of  law,  562 
mistake  must  have  been  mutual,  564 
unless    defendant    was    guilty    of 

fraud,   565 
though     the     fraud     might     have 

been  discovered,  566 
mere    ignorance    of    contents    of 
deed    no    ground    for    reforma- 
tion, 566 


Reformation  of  the  conveyance  —  Con- 
tinued, 
pleadings   must   allege   mutuality 

of  mistake,  f>ii.~> 
mistake     must     not     have     resulted 

from  negligence,  566 
exceptions  to  this  rule,  667 
nature   and   degree  of   eviden 

quired,  567 
no    difficulty    in    case    of    patent 

mistake.  :>iJ7 
parol  evidence  admissible  to  show 

mistake.  ."><>H 
but   must  be   clear  and   positive, 

568 

burden  of  proof  is  on  complain- 
ant, 568 

inconsistence  of  deed  with  prior 
contract  not  necessarily  a  mis- 
take, 568 

laches  in  application  for  relief,  569 
not  imputable  unlil  discovery  of 

mistake,   569 
nor  where  grantor  has  refused  to 

correct,  569 
defective     execution     of     statutory 

power  will  not  be  aided,  560 
except    in    mere    matters    of    de- 
scription, 570 
right    not    confined    to    immediate 

parties,  570 
but   complainant   must   be   party 

or  privy  to  the  deed,  570 
remote  grantee  entitled,  570 
denied  purchaser  at  sheriff's  sale, 

570 
denied     grantee    owing    part    of 

purchase  money,  570 
grantor   entitled    to   reformation, 

571 
but   deed    is    always   construed 

strongly  against  him,  571 
and  denied  in  case  of  his  neg- 
ligence, ~>7- 

and  where  he  insists  upon  pay- 
ment of  the  purchase  money, 
572 

may  be  decreed  against  heirs,  de- 
^-i-ps.   grantees    and    others, 
572 
persons    in    interest    must    be 

made  parties.  572 
when   grantor  not  a  necessary 

party,  572 

may  be  decreed   in   favor  of  and 
against  subsequent  purchasers 
and  creditors.  57" 
but    not    as    against    thorn    if 

without  notice.  573 
possession    sufficient   as   notice, 
574 


902 


INDES. 


[REFERENCES  ARE  TO  PAGES.] 


Refonnttion  of  the  conveyance  —  Con- 
tinued. 

mistake    on    face    of    deed    is 
notice,  575 

bill  must  aver  notice  to  defend- 
ant, 575 

purchaser      must      have      paid 

value,  575 

volunteer  not  entitled  to  reforma- 
tion as   against  grantor,   575 

but  is  entitled  as  against  other 
persons,  575 

granted   in  favor  of  mortgagee 
of  volunteer,  575 

examples  of  sufficient  consider- 
ation, 576 

married    woman's    deed    will    not 
be  reformed,  576 

except    in    matters    of    descrip- 
tion, 576 

and    except    where    disabilities 
have  been  removed,  576 

Eegistration   of   deeds.     (See   RECORD 
AND  RECORDING  ACTS.) 

Registry  acts.    (See  RECORDING  ACTS.) 

Release.     (See  QUIT  CLAIM.) 
(See  QUIT  CLAIM.) 
does  not  affect  subsequent  assignee 

of  covenants,  380 
will    pass   benefit    of   covenants    for 

title,  380 

will  not  operate  estoppel  or  rebut- 
ter, 544 

Remedies. 

of   the   parties   on   failure   of   title. 
(See  Analysis,  p.  VII.) 

Rents  and  profits.    (See  MESNE  PROF- 
ITS.) 

Rescission. 

of  executory  contract,  4,  689 
by  proceedings  at  law,  582 
by  act  of  the  parties,  577 

rescission  is  abrogation  of  the 

contract,  577 

classification  of  ways  in  which 

rescission  may  occur,  578,  n. 

may  always   occur   by   consent 

of  parties,  578 
consent  may   be   implied   from 

acquiescence,  578 
party    rescinding    should    give 

notice  of  intent,  578 
each   party   must  restore   what 

he  has  received,  578 
no  forfeiture  of  purchaser's  de- 
posit in  such  cases,  579 


Rescission  —  Continued. 

though  contract  provides  for 

such  forfeiture,  579 
rescission  by  act  of  one  party 

only,  579 

but  one  party  cannot  deprive 
the  other  of  right  to  per- 
form, 580 

may  sometimes  treat  the  con- 
tract as  rescinded,   580 
rescission  by  consent  not  with- 
in Statute  of  Frauds,  581 
by  proceedings  in  equity,  689 
suit  for  rescission   proper,  689 
may    be    maintained     where 

title  has  failed,  689 
not    dependent    on    right    to 
maintain   action    for   dam- 
ages, 690 

grounds  of  equitable  juris- 
diction, 691 

fraud  always  ground  for.  691 
reduction    of    agreement    to 

writing,   immaterial,   691 
rescission   where   vendor   had 

no  power  to  sell,  691 
when   purchaser   estopped   to 

rescind,  692 

defenses  to  vendor's  suit  for 

specific  performance,  692 

doubtful    or    unmarketable 

title,  692 

unless    sale    was    of    such 
title      or      interest      as 
vendor  had,   693 
vendor     must     show     title 

prima  facie,  Ofl3 
purchaser  must  then  show 

defects,   693 

objection  to  title  may  be 
made  after  answer.  693 
vendor  resting  his  title  on 
particular  ground  cannot 
shift  after  suit  begun, 
694 

vendor  on  rescission  must  be 
placed  in  statu  quo,  694 
purchaser      must      restore 
premises  to  vendor,  694 
denied,      where       premises 
cannot    be     restored     in 
same     condition     as    re- 
ceived,   694 

unless  injury  can  be  abated 
from     purchase     money, 
694 
substantial  compliance  with 

rule  sufficient,  697 
vendor's  remedy  when  pur- 
chaser refuses  to  restore, 
696 


INDEX. 


903 


[REFERENCES   ABE  TO  PAGES.] 


Rescission  —  Continued. 

contract  must  be  rescinded 
in  tutu  or  not  at  all,  696 
vendor  may  recover  prem- 
ises in  ejectment,  690 
purchaser  estopped  to  deny 

his  title,  697 

restoration  as  condition  pre- 
cedent to  rescission,  697 
cases    in    which    purchaser 
may  refuse  to  restore  the 
premises,   623,   624 
purchaser  entitled  to  interest 
on  purchase  money,  when, 
698 

rents  and  profits  usually 
set  off  against  interest, 
698 

unless  purchaser  liable  to 
true  owner  for  mesne 
profits,  699 

when  not  liable  to  vendor 
for  mesne  profits,  221, 
699,  700 

in     equity     purchaser     al- 
lowed for  improvements, 
701 
unless  made  with  notice  of 

defect,  702 

purchaser's     pleadings     must 
show  how  title  is  defective, 
703 
who  necessary  parties  to  suit 

for  rescission,  704 
of  executed  contract,  853 

generally   denied  except  in  cases 

of  fraud  and  mistake,  853 
(See  MISTAKE,  and  858.) 
(See  PURCHASE  MONET,  and  630.) 
fraud    always    a    ground   for    re- 
scission, 855 
fraud    not    merged   in    warranty, 

855 

decree    must    provide    for    recon- 
veyance, 854 
purchaser  must  reconvey  or  offer 

to  reconvey,  856 
except  where  vendor  has  no  color 

of  title,  856 

or  has  refused  to  accept  a  recon- 
veyance, 856 
purchaser  must  act  promptly  on 

discovery   of   fraud,   857 
damages     allowed    purchaser    on 

rescission  when,  487,  857 
Reservation. 

unauthorized,  in  deed,  73 
of  vendor's  lien  to  be  noted  in  exam- 
ining title,  173 

of  minerals  is  an  incumbrance,  776 
other  reservations,  776 


Reservation  —  Continued, 
by   parol,   inadmissible   in  evidence , 
282 

Restoration  of  premises  to  vendor. 
necessary  on  rescission  of  contract, 

615 

though    purchaser    has   made   im- 
provements, 618 
vendor  must   be   placed  in  $tatu 

quo,  619 
as  condition   precedent  to  rescis- 

sion,  620 

rule  in  Pennsylvania,  621 
in  cases  of  fraud,  622 
when  rule  does  not  apply,  623 

where  vendor  refuses  to  receive 

them,  624 
where    detention    necessary    for 

purchaser's  indemnity,   624 
purchaser's    lien    for    purchase 

money  paid,  625 
where  title   fails  to  part  only, 

626 
where  the  contract  is  void,  628 

Resulting  trust. 

purchaser  without  notice  not  affected 
by,  181 

Right  of  way. 

to    be    inquired    for    by    purchaser, 

183 
when  a  breach  of  covenant  against 

incumbrances,  301 
notice  of,  to  purchaser  at  time  of 

covenant,  304 
is  not  breach  of  covenant  of  seisin, 

260 

renders  title  unmarketable,  775 
loss  of  or  eviction   from,  a  breach 

of  warranty,  374 

through      warranted      premises,      a 
breach  of  warranty,  377 

"Right,    Title    and    Interest."      (See 

QUIT  CLAIM.) 

effect  of  agreement  to  sell,  38 
conveyance  of,  passes  after-acquired 

estate  when.  550 

Right  to  convey,  Covenant  for.    (See 
COVENANT  OF  SEISIN.) 

Roads.    (See  HIGHWAYS.) 

Root    of    title.      (See    ABSTEACT   or 

TITLE.) 
what  is,  161 

Running  with  the  land.    (See  the  sev- 
eral covenants  for  title.) 


904 


INDEX. 


[REFERENCES  ABE  TO  PAGES.] 


Sale.      (See   JUDICIAL   SALE,   CAVEAT 

EMPTOB.  ) 
implies  indefeasib'e  title  in  vendor, 

20 

of  fee  simple  implied,  21 
by  personal  representatives,  108 
sheriffs  and  others,  118,  132 

Satisfaction  ef  lien. 

by    surety    should    be    noted    in   ex- 
amining title,  177 
of  incumbrance,  when  presumed,  787 

Scroll. 

in  place  of  a  seal  sufficient,  54 

Seal. 

necessity  for,  54 
scroll  sufficient,  54 
must  be  recognized  as  seal,  when,  55 
to  be  noted  in  examining  title,  171 
does   not   exclude   inquiry  into   con- 
sideration, 605 

Seisin,  Covenant  for. 

form  and  effect  of,  254 

importance  of,  255 

requires  an  indefeasible  estate,  255 

in  some  States  satisfied  by  bare  pos- 
session, 256 

implied  from  certain  words  of  grant, 
257 

right  of  action  for  breach  is  per- 
sonal, 257 

what  constitutes  breach,  258 
mere  incumbrance  does  not,  260 

not  affected  by  champertous  deed, 
259 

does  not  run  with  land  after  breach, 

261 

contrary  rule  in  some  States,  265 
possession  must  have  passed  with 
deed,  268 

when  Statute  of  Limitations  begin 
to  run,  269 

where  action  must  be  brought,  270 

measure  of  damage  for  breach,  270 
nominal,  if  no  eviction,  273 
loss  of  part  of  estate  only,  275 

burden  of  proof  in  action  for  breach, 
275 

pleadings  in  action  for  breach,  278 

detention  of  purchase  money  in  case 
of  breach,  630  (See  PURCHASE 
MONET  OF  LANDS.) 

Set-off.    (See  COUNTERCLAIM,  RECOUP- 
MENT. ) 

Sheriff's  sale.    (See  CAVEAT  EMPTOR.) 
caveat  emptor  applies  to,  118 
exceptions,  123 


Sheriff's  sale  —  Continued, 
title   under  void  judgment,   126 
title  under  void  execution,   129 
purchaser  cannot  require  covenants, 

157 

covenants  enure  to  benefit  of  pur- 
chaser at,  382 

Pennsylvania,  equitable  doctrine  of 
detention  of  purchase  money  does 
not  apply  to,  673 

Signature. 

of  grantor  to  deed  not  essential,  54 
but  should  be  required  by  purchaser, 

54 
of  certifying  'officer  to  certificate  of 

acknowledgment,  68 
to  be  noted  in  examination  of  title. 

171 

Sovereignty.      (See   ACTS    OF    SOVER- 
EIGNTY, EMINENT  DOMAIN.) 

Specific    performance.       (See    TITLE, 

RIGHT  TO  PERFECT,  COMPENSATION 

FOB  DEFECTS,  PURCHASER,  DOUBT- 
FUL TITLE.) 

of    executory    contracts    at    suit    of 
purchaser,  479 

denied  where  vendor  has  no  title, 
480 

and  where  equitable  title  is  in  a 
stranger,  481 

granted  as  against  second  pur- 
chaser with  notice,  481 

vendor  must  make  reasonable  effort 
to  get  in  title,  482 

want  of  title  at  time  of  contract, 
no  objection,  482 

when  vendor  may  be  required  to 
remove  incumbrance,  483 

when  he  cannot  be  required  to 
remove  defect,  483 

abandonment  of  contract  waives 
right  to  specific  performance, 
484  . 

acceptance  of  offer  to  sell  must  be 
unqualified,  484 

effect  of  acceptance  of  purchaser 
"provided  the  title  is  perfect," 
485 

purchaser  must  have  paid  or  ten- 
dered purchase  money,  485 

unless  he  has  notice  that  vendor 
will  not  perform,  486 

laches  takes  away  purchaser's 
right  to  relief,  487 

damages  in  lieu  of  specific  per- 
formance denied,  487 

unless  other  relief  was  in  good 
faith  the  object  of  the  suit,  487 


IXDEX. 


905 


[REFERENCES   ARE  TO   I' 


Specific  performance  —  Continued. 

measure  of  damages  in  such  cases, 

490 

at  ^it  of  purchaser,  with  compensa- 
tion for  defects,  491 
may   take  such   estate  as   vendor 

lias,  491 
or  apply   purchase   money   to   in- 

cumbrances,  494 
or    have    abatement    of    purchase 

money,  494 
basis    upon    which    compensation 

will  be  decreed,  494 
purchaser    bound    by    election    to 

keep   the  estate,   494 
decree  for  abatement,  how  framed, 

495 

purchaser   cannot   require   indem- 
nity against  future  loss,  495 
except,  it  seems,  against  inchoate 

right  of  dower,  496 
and  this  by  abatement  of  purchase 

money,  496 
where    specific    performance    with 

abatement  denied,  500 
where  there  is  title  to  small  por- 
tion only,  500 
where  conditions  of  sale  provide 

for  rescission,  500 
where    purchaser    bought    with 
knowledge  of  defect,  500,  502 
where  purchaser  has  been  guilty 

of  laches,  501 
where   contract   was    to   convey 

upon  a  contingency,  501 
where  inconsistent  with  the  con- 
tract, 501 
purchaser  must  have  given  vendor 

opportunity  to  abate,  502 
must  take   the  whole  of  part  to 

which  title  is  good,  502 
right  of  vendor  to  rescind  where 

title  fails,  503 

denied,  unless  reserved  in  the  con- 
tract, 503 
or  except   in   case  6f  fraud  or 

mistake,  503 
vendor  rescinding  must   return 

purchase  money,  505 
specific  performance  of  covenants  for 

title,  514 
of  covenant  for  further  assurance, 

514 

removal  of  incumbrance,  515,  516 
conveyance  of  after-acquired  estate 

516 
at  suit  of  vendor,  705,  792,  822 

State.    (See  EMINENT  DOMAIN.) 

covenants  cannot  be  required  from. 
158 


State  —  Continued, 
but  if  given  operate  an  estoppel,  158 
appropriation  of  lands  by,  no  breach 
of  warranty,  354 

Statute.     (See  LIMITATIONS,  STATUTE 

OF.) 
of  Frauds,  agreement  to  rescind   i* 

not  within,  581 
does   not   affect   right   to   recover 

back  purchase  money,  596 
title  as  dependent  on  private,   7">»'. 
758,  n.,  769,  n 

Street.    (See  HIGHWAY.) 

Subrogation. 

of  surety,  to  be  noted  in  examining 
title,  *177 

of  purchaser  at  judicial  and  min- 
isterial sales,  134 

of  purchaser  to  benefit  of  lien,   ~>7'2 

where  no  covenants  for  title,  654 

Subsequent     purchaser.        (See     FIK- 

CHASER.  ) 

entitled  to  benefit  of  covenants  for 
title,  303,  377 

Sufficiency  of  conveyance  tendered. 
(See  DEED.) 

Sufficiency  of  vendor's  title.  (See 
DOUBTFUL  TITLE,  TITLE,  ABSTRACT 
OF  TITLE.) 

Suit.     (See  ACTION.) 

effect    of    notice    to    covenantor   of, 

and  request  to  defend,  423 
in  equity,  when  a  breach  of  covenant 

for  quiet  enjoyment,  437 

Sunday. 

deed  executed  on,  is  valid,  44 

Surplusage. 

does     not     vitiate      certificate 
acknowledgment,  70 

Surrender. 

of  premises,  when  a  construct! 

eviction,  363 
adverse  title  must  have  been  !i«» 

tilely  asserted,  367 
and  must  be  shown  to  have  been 

paramount,  368 

Suspension  of  power  of  alienation, 
title   as   dependent  on,   cases  cited, 
766,  n.,  768,  n 


906 


INDEX. 


[REFERENCES   ABE  TO   PAGES.] 


Taxes. 

to  be  noted  in  examining  title,  178 

when  breach  of  covenant  against  in- 
cumbrances,  292 

covenants  for  title  cannot  be  re- 
quired from  tax  officer,  157 

when  to  be  paid  by  purchaser,  597 

Tax  sale. 

will  not  pass  benefit  of  covenants  for 

title,  382 
caveat  emptor  applies  to,  132 

Tax  title. 

validity  of  tax  sale  to  be  noted  in 

examining  title,  179 
burden    is    on    adverse    claimant   to 

show  invalidity  of,  179 
caveat  emptor  applies  to  purchase  at 

tax  sale,  132 
and  has  been  applied  to  transferee 

of  tax  title,  132 
not  marketable,  when,  773 

Tenants  in  common. 

should  covenant  severally,   153 
may  sue  severally  for  breach  of  war- 
ranty, 349 

Tender  of  performance. 

by  purchaser,  necessity  for,  200 
distinction  between  mutual  and  de- 
pendent covenants,  200 
what  is  sufficient  tender,  202 
when  no  tender  need  be  made,  202 
duty  of  vendor  to  tender  perform- 
ance, 205 

vender  must  prepare  conveyance,  207 
tender  must  be  averred,  208 

Term  of  years.    (See  LEASE.) 

Timber. 

privilege,  breach  of  covenant  against 
incumbrances,  298 

Time.  (See  LACHES,  LIMITATIONS, 
STATUTE  OF.) 

of  completing  contract,  when  mate- 
rial, 801 

in  which  to  perfect  the  title  allowed, 
792,  798 

in  which  to  examine  title  allowed,  75 

in  which  abstract  should  be  fur- 
nished, 164 

title  as  dependent  on  presumptions 
from  lapse  of,  744,  787 

Title.    (See  TITLE,  RIGHT  TO  PERFECT 

THE.) 

absolutely  bad,  what  is,  2 
purchaser  may  demand  what,  20,  705 


Title  —  Continued. 

covenants  for,  which  purchaser  may 
demand,  143 

abstract   of,    159 

should   be    examined    by   purchaser, 
160,  241,  245,  394 

of  lessor  not  usually  examined,  152, 
408 

waiver   of  objection   to,   184 

paramount,    may    be    gotten    in    by 
covenantee,  369,  506 

may  be  perfected  by  purchaser,  360 

acceptance  of,  with  compensation  for 
defects,  491,  822 

subsequently     acquired,     enures     to 
grantee,  518 

root  of.  what  is,   161 

doubtful,  what  is,  2,  706 

as  dependent  on  adverse  possession, 

737 
presumptions  from  lapse  of  time, 

744 

notice,  747 

errors  in  judicial  proceedings,  751 
sale    of    estates    of    infants    and 

others,  755 

want  of  parties  to  suits,  757 
defective  conveyances,  761 
construction   of   deeds   and   wills, 

766 

competency  of  parties  to  instru- 
ments, 767 

intestacy  and  insolvency,  771 
satisfaction   oi  incumbrances,  786 

vendor  may  perfect,  792 

may  be  referred  to  master  in  chan- 
cery, 816 

Title  bona. 

is  a  sealed  obligation  to  make  title 

under  penalty,  23 
acceptance  of,  has  been  held  a  waiver 

of  right  to  rescind,  197 
contrary  view  in  other  cases,  602 

Title,  Right,  to  perfect  the. 

right   of    purchaser    to    perfect    the 
title,  506 

by  the  purchase  of  adverse  claim, 
506 

but    only   as    set-off   to    purchase 
money,  506 

unless  he  has  been  evicted  or  sur- 
rendered the  premises,  506 

purchase  must  have  been  necessary 
for  his  protection,  508 

price  paid  not  conclusive  of  value 
of  adverse  claim,  509 

caution  in  purchasing  prospective 
interests,  509 

discharge    of    liens    and    incum- 
brances, 509 


INDEX. 

[RKFEBENCES  ABC  TO  PAGES.] 


907 


Title,  Right    to  perfect  the  — Contin- 
ued. 

purchaser  may  always  apply  pur- 
chase money   to   liens,   509 
duty  so  to  apply  purchase  money, 

510 
takes  the  risk  of  validity  of  the 

incumbrance,  511 
caution    in    paying    off    mortgage 
lien,  511 

rights  of  transferee  of  mortgage 

note,  511 
can  have  credit  only  for  amount 

actually  paid,  512 
subrogation  to  benefit  of  lien  dis- 
charged, 512 

and  to  all  of  lienor's  remedies, 
512 

but  only  to  extent  of  amount 
paid  out,  512 

in  case  of  void  sale,  513.     (See 

CAVEAT  EMPTOB.) 
right  of  vendor  to  perfect  the  title 
before  time  fixed  for  completion  of 
the  contract,  792 

vendor  mny  of  right  remove  ob- 
jections,' 793 

unless  he  has  no  colorable  title, 
793 

existence  of  incumbrances  imma- 
terial, 794 

unless  contract  provides  that 
they  shall  be  discharged  be- 
fore time  for  completion,  794 

purchaser  should  make  objec- 
tions to  title  in  time,  794 

day  fixed  for  performance  usu- 
ally a  formality,  794 

rule  where  no  time  is  fixed,  795 

where  purchase  money  is  pay- 
able in  installments,  796 

vendor  must  pay  costs  of  suit, 
797 

injunction  or  ne  exeat  will  not 
be  granted  vendor,  797 

vendor  not  obliged  to  perfect  the 

title,  798 

after  time  fixed  for  completion  of 
the  contract,  798 

may  \  rfect  the  title  at  any  time 
befoie  decree,  798 

especially  if  purchaser  knew 
jLitle  wns  defective,  799 

but  cannot  have  indefinite  time, 
801 

exceptions  to  thi  general  rule, 
801 

(1)  where  time  is  material, 
801 

(2)  where  the  covenants  are 
mutual  and  dependent,  804 


Title,  Right    to  perfect  the  — Contin- 
ued. 

(3)  where  the  vendor  has  ac- 
quiesced in  purchaser's  o\t 
jections,  804 

(4)  where  much  loss  and  in- 
jury would   result  to   pur- 
chaser, 804 

(5)  where   vendor   has    been 
guilty  of  fraud,  805 

(6)  where  vendor  had  no  col- 
orable title,  806 

(7)  where   vendor   has   been 
guilty  of  laches,  810 

(8)  where  contract  stipulates 
for  rescission,  811 

(9)  where  time  is  made  ma 
terial  by  notice,  813 

in   what  proceedings   vendor   m.iv 

exercise  the  right,  813 
in  suit  for  specific  performance 

by  either  party,  813 
in   suit   to   enjoin   collection   of 

purchase  money,  814 
in  certain  suits  at  law,  814 
reference    of    title    to    master    in 

chancery,  816 

when  title  will  be  referred.  816 
reference   is   a    mater   of    ri^ht 

when  title  is  doubtful.  817 
denied,     where     mere     interest. 

such  as  it  might  be,  was  soKl. 

817 
and  where  the  court  is  satisfied 

about  the  title,  817 
at  what  stage  of  the  proceeding 

reference  directed,  818 
procedure  on  reference,  818 
costs  of  reference,  how  decreed, 

819 
interest  on  purchase  money  while 

title  is  being  perfected,  819 
purchaser  in  most  cases  excused 

from  paying  interest,  820 

lortious  acts. 

no  breach  of  covenant  of  warranty, 

349 
except  those  of  grantor  or  his  agents 

353 

Trust,  Deed  of. 

sale  under,  when  enjoined  for  defect 

of  title,  851 
Tiustee, 

caveat  emptor  applies  to  sale  by,  132 
general  covenants  cannot  be  required 

from,  153 

title  as  dependent  on  power  of,  768, 
n.,  769 


908 


[HEFEKENCES   ARE   TO   PAGES.] 


Uncultivated  and   waste  lands.     (See 
VACANT  LANDS.) 

Usual  covenants.    (See  COVENANTS  FOB 
TITLE.  ) 

Vacant  and  unoccupied  land. 

what  is  constructive  eviction  from, 
362 

Value.    (See  IMPROVEMENTS,  DAMAGES.) 

Vendor.    (See  PURCHASES.) 

entitled  to  reasonable,  time  in  which 
to  prepare  and  tender  deed,   15 

when  restrained  from  suing  for  pur- 
chase money,  19,  832 

what    covenants    may    be    required 
from,  143 

must  furnish  abstract  of  title,  162 

competency  of,  to  be  noted  in  exam- 
ining title,   172,   182 

duty  to  tender  performance  of  con- 
tract, 205 

must  disclose   latent  defects  in  the 
title,  237 

not  bound  to  call  attention  to  patent 
defects,  241 

may  rescind  on  failure  of  title,  when, 
503,  577 

must   convey   subsequently   acquired 
title,  518 

may     maintain     ejectment     against 
purchaser,  when,  618 

has  a  right  to  perfect  the  title,  when, 
792 

may  require  purchaser  to  take  title 

with  compensation,  when,  822 
'    defenses  of,  to  purchaser's  applica- 
tion for  relief,  5,  9 

Vendor's  lien. 

to  be  noted  in  examining  title,  173 
178 

Venue. 

of  certificate  of  acknowledgment,  im- 
portance of,  57 

Voluntary  conveyance.     (See  VOLTJN- 

TEEBS. ) 

title  as  dependent  on  notice  of,  748 

Volunteers. 

deed  will  not  be  reformed  in  favor 
of,  575 

Waiver. 

of  objections  to  deed,  73 

"Waiver  of  objections  to  title. 

not  necessarily  a  waiver  of  right  to 

compensation,  185 
is   an   implication   of   law   in  most 

cases,  186 


Waiver  of  objection  to  title  —  Contin- 
ued. 

resale  does  not  amount  to  wai\<M. 
188 

waiver  by  taking  possession,   189 

implied  from  laches  of  purchaser. 
191 

waiver  ,  by  continuing  negotiations 
with  vendor,  193 

waiver  in  cases  of  fraud,  194 

implied  from  purchase  with  notice 
of  defect,  195 

none  implied  from  absence  of  agree- 
ment for  covenants,  196 

Want  of  title.    (See  DOUBTFUI   TITLE, 
TITLE,  PURCHASES,  VENDOR.) 

Warrantia  chartae. 

writ  of,  no  longer  in  use,  330 

Warranty,  Covenant  of. 
origin  and  form,  329 
can  be  created  only  by  deed,  330 
is  either  general  or  special,  331 
construction  and  effect,  333 
includes  the  other  covenants  in  some 

States,  333 
when    does    not     include    covenant 

against  incumbrances,  334 
effect  by  way  of  estoppel  or  rebuttal. 

( See'EsTOPPEL. ) 
not    affected    by   notice    of    adverse 

claim,  335 
want  of  consideration  no  defense  to 

action  on,  336 
Statute  of  Limitations  begins  to  run, 

336,  357 

does  not  extend  to  quantity,  336 
qualification  and  restrictions  of,  338 

express  intentibn  to  restrict  must 
appear,  339 

conveyance  of  "  right,  title  and  in- 
terest "  with  warranty,  340 
when  implied,  341 

in  a  lease,  343 

in  an  exchange,  344 

in  partition,  344 

none  from  recitals  in  a  deed,  344 
parties  bound  and  benefited,  344 

married  women,  345 

heirs  and  devisees,  345 

joint  covenantors,  347 

bankrupts,  347 

personal  representatives  and  fidu- 
ciaries, 348 

municipal  corporations  349 
who  may  sue  for  breach,  349 
what  constitutes  breach,  350 

not  broken  by  tortious  disturbance, 

350 

except    by    covenantor    himself, 
352 


IXDI:X. 
[BEFEHENCES  ABE  TO  PAGES.] 


909 


Warranty,  Covenant  of  —  Continued, 
nor  by  exercise  of  eminent  domain, 

354 

broken  by  eviction  only.  355 
entry  by  paramount  claimant,  358 
under  legal   process,  358 
under  foreclosure  of  incumbrance 

359 
constructive  eviction,  360 

inability  to  get  possession,  360 
vacant  and  unoccupied  land,  362 
surrender  of  possession,  363 
judgment  in  ejection  not  an 

eviction,  365 
hostile    assertion    of    adverse 

claim,  367,  373 
must  show  paramount  title  in 

surrenderee.  368 
purchase    of    outstanding    title, 

369 
covenantee    must    show    that 

title  was  paramount,  371 
discharge   of   incumbrance   to 

prevent  eviction,  372 
loss  of   incorporeal  hereditament, 

374 

existence  of  adverse  easement,  374 
runs  with  land  till  eviction,  377 
assignee    after    eviction,    entitled, 

when,  378 

equitable  owner  not  entitled,  378 
assignee  may  sue  in  his  own  name, 

379 
several    actions    against    original 

covenantor,  379 
release  of  covenant  by  immediate 

covenantee,  380 

quit  claim  passes  benefit  of,  381 
intermediate  covenantee  must  have 

been  damnified,  382 
remote  assignee  may  sue  original 

covenantor,  384 
mortgagee   entitled   to  benefit  of, 

385 
original  covenantor  must  have  been 

actually  sei/ed,  386 
nominal  grantor  joining  for  con- 
formity not  liable  to  assignee, 
388 
assignee  not  affected  by  equities  of 

covenantor,  389 

covenant    extinguished    by    recon- 
veyance to  grantor,  389 
pleadings  in  suit  by  assignee,  390 
measure  of  damages,  390 

in    most    States    is    consideration 

money,  391 
value   at   time  of  eviction    is,   in 

New  England  States,  391,  398 
exception  to  general  rule  in  case 
of  mortgage,  393 


Warranty,  Covenant  of  —  Continued, 
no    allowance    for     improvement-, 

:{'.I4.  413 

not  aggravated  by  grantor's  fraud, 
but  actual  damages  may  be  given 
in  action  for  deceit,  395 
is  value  at  time  of  contract  and 

not  time  of  conveyance,  395 
nominal     only     against     nominal 

grantor,  396 
and     against     mere     voluntary 

grantor,  396 
purpose  of  purchase  immaterial  on 

question  of,  397 

governed  by  leae  loci  contracts,  3'.'7 
on   collateral   contract   to   remo\- 

incumbrance,  397 

failure  of  grantee  to  take  posses- 
sion does  not  affect,  398 
where  purchase  money  is  unpaid, 

398 

in  favor  of  assignee,  401 
true  consideration  may  be  shown, 

402 

stated  in  deed  prima  facie  evi- 
dence only,  402 
where  none  stated,  403 
where  not  paid  in  nloney,  403 
agreement  for  non-liability  inad- 
missible, 403 

where   covenantee    buys    in    para- 
mount title,  404 
can    recover    only    amount    ao 

paid,  404 
except    where    premises    were 

public  lands,  405 
and    necessary    expenses    there- 
with incurred,  405 
must  show  that  title  was  para- 
mount, 405 
refusal  to  buy  in  immaterial  on 

question  of,  405 
on  eviction  from  leased  premises, 

406 
actual  value  of  residue  of  term, 

407 
where    lessee    liable    for    mesne 

profits,  408 
on  eviction  from  part  of  premises, 

409 
•  relative  and  not  average  value 

of  part  lost,  409,  411 
loss  of  part  no  ground  for  re- 

scission,  411 
where    grantor    had    only    a    life 

estate,  412 

burden  on  plaintiff  to  show  rela- 
tive value.  413 

where  premises  are  subject  to  ease- 
ment, 413 
interest  as  element  of  damages.  414 


910 


INDEX. 


[EEFEBEXCES   ABE  TO   PAGES.] 


Warranty,  Covenant  of  —  Continued. 
as    governed     by     liability    foi 

mesne  profits.  414 
runs  from  time  of  purchase,  417 
costs  in  suits  by  adverse  claimant 

as  element  of  damage.  417 
•where   notice   of   suit   has  been 

given,  417 
conflict    of    authority    on    this 

question.  418 
refused,  unless  plaintiff  has  been 

evicted,  419 
other   cases    in   which,   refused. 

419 
special  agreement  to  indemnify 

not  merged  in  deed,  420 
grantee  need  not  show  previous 
demand     for     reimbursement, 
421 

counsel  fees  and  expenses  as  ele- 
ments of  damage,  421 
conflict    of    authority    on    this 

point,  421 

as  dependent  on  notice  and  re- 
quest to  defend,  423 
notice  to  defend  or  prosecute  eject- 
ment, 423 

if  given  relieves  covenantee  from 
showing    recovery    under    para- 
mount title,  424* 
denied  in  North  Carolina,  425 
concludes  covenantor  from  disput- 
ing title  of  evictor,  426 
unless  derived  from  covenantee 

himself,  427 

should  be  given  to  covenantee  him- 
self. 427 

to  agent  for  collection  of  pur- 
chase money  insufficient.  427 
is  nugatory  in  case  of  actual  col- 
lusion. 427 
right  of  covenantor  to  new  trial, 

427 
must  be  unequivocal,  certain  and 

explicit.  427 

mere  knowledge  of  action   insuffi- 
cient. 428 

effect  of  notice  to  prosecute  eject- 
ment, 428 
no  particular  form  of,  necessary. 

428 

need  not  be  in  writing,  429 
if  not  given,   judgment  not  even 
prima  facie  evidence  of  title,  429 


Warranty,  Covenant  of  —  Continue.!, 
must  be  given  in  reasonable  time. 

430 

fact  of,  is  question  for  jury,  430 
sufficiency  of,  is  question  for  court, 

430 
not  indispensable   to  recovery  on 

warranty,  430 
merely    dispenses    with    proof    of 

title  in  evictor,  430 
but     covenantee    must     always 
show  that  such  title  was  not 
derived  from  himself,  431 
pleadings    in    action    for    breach    of 

warranty,  433 

covenant  must  be  set  out  in  sub- 
stance, 433 
eviction     by    one     having    lawful 

right  must  be  averred,  434 
not   sufficient    merely   to   negative 

words  of  covenant"  434 
but  nature  of  eviction  need  not  be 

alleged,  434 
title  of   evictor   need   not  be   set 

forth,  434 
reliance  on  warranty  need  not  be 

alleged,  435 

must  aver  that  title  of  evictor  was 

older  than  that  conveyed,  434 

unless  warranty  was  limited  to 

claims  of  a  particular  person. 

434 

notice  and  request  to  defend  need 

not  be  averred,  435 
must  aver  that  title  of  evictor  wa» 

within  the  covenant,  435 
burden  of  proof  lies  on  plaintiff,  43"> 
but  shifts   under  certain   circum- 
stances, 435 

warranty  is  proven  by  the  deed, 

without  proof  of  execution,  43G 

detention    of    purchase    money    on 

breach  of,   442.      (See  PUBCHASE 

Mam.) 

WilL 

objections  to  title  apparent  on  face 

of,  174 

mistake  in,  cannot  be  corrected,  560 
questions    of    title    arising    on    con- 
struction of,  766 

Words  of  conveyance. 

indispensable  in  deed.     (See  DEED.) 


[WHOLE  NUMBER  OF  PAGES,  986.] 


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